carries the right to divest a vested right, or annihilate a right of action or a right of property. (Cooley, Const. Lim., 237, 275, 357.)

2. The act of June 14, 1878, (20 Stats., 13,) neither authorizes nor prohibits a re-examination of the claim. That act made it the duty of the accounting officers to consider the validity of claims under appropriations, the balances of which had been exhausted or carried to the surplus fund, but provided that no claim once rejected should be re-examined unless reopened in accordance with existing law.

The appropriation made by the joint resolution of February 28, 1867, was a "permanent specific appropriation," which could not be carried to the surplus fund, and hence has no application to this claim. (Act June 20, 1874, 18 Stats., 110.)

3. I do not find that the decision of the Secretary of the Treasury of April 20, 1877, has any application to this claim.

That was founded on the act of June 20, 1874, (18 Stats., 110, sec. 5,) and the act of June 14, 1878, (20 Stats., 130,) and it was held that its purpose

"Was to confine the officers of the Government to the allowance and payment of [certain] liabilities within three fiscal years."

The reason was that the act declared that

"The Secretary of the Treasury shall cause all unexpended balances of appropriations which shall have remained on 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 extend to permanent specific appropriations," &c.

But as this claim is made under a "permanent specific appropria. tion," the act of 1874 does not affect it, except to save the right to consider it, so far as not precluded from consideration for other reasons. It is immaterial now whether the right reasons have been given heretofore for rejecting the claim. It was rejected; that is, the accounting officers refused to allow it. And sufficient reasons existed to justify the rejection.

I have not put my opinion against the reference of this claim to the Court of Claims on the ground either (1) that there is no power to reexamine it in the Treasury Department, or (2) because there is no appropriation to pay it, or (3) because barred by any limitation statute. The first question seems to be somewhat misunderstood.

All claims, as a general rule, against the United States are to be settled and adjusted by the accounting officers of the Treasury Department, (Rev. Stats., 236, 269, 277, &c.;) but claimants, in certain cases, may instead pursue their rights in the Court of Claims, (Rev. Stats., 1059;) and specified claims may be referred to the said court by heads of Departments. (Rev. Stats., 1063.)

I.-As to the power to re-examine (1) adjusted and (2) rejected claims:

1. When a claim is adjusted by the proper officers of the Treasury Department, and a balance finally certified as due, the determination is "final and conclusive," and hence cannot, as a general rule, be re-examined in the Department. This is not a rejected claim. (Rev. Stats., 191, 270; construed, 12 Op., 43; Winnisimmet Co. vs. U. S., 12 Ct. Cls., 326; Lippitt vs. U. S., 14 Ct. Cls., 153; 15 Pet., 377; Wood's case, this vol., ante, p. 9; act June 14, 1878, 20 Stats., 130. Supreme Court: 6 Wheat., 135; 9 Wheat., 651; 3 Pet., 12; 5 Pet., 292; 8 Pet., 375; 9 Pet., 319; 15 Pet., 400; U. S. vs. Bank of Metropolis, 10 How., 109; 13 How., 478; 1 Op., 598; 2 Op., 463, 515; 3 Op., 46, 148, 461, 521, 731; 4 Op., 79, 341, 378; 5 Op., 29, 123, 668-9; 6 Op., 576; 9 Op., 32, 101, 301, 387, 505; 10 Op., 56; 12 Op., 43, 357, 386–8, 505; 13 Op., 33, 226, 297, 387, 456.)

2. So, under the acts of June 16, 1874, and June 20, 1874, (18 Stats., 75, 110,) and June 14, 1878, (20 Stats., 130,) claims which had been "once examined and rejected" prior to the latter date, "under appropriations, the balances of which have been exhausted or carried to the surplus fund," cannot be re-examined, "unless reopened in accordance with [then] existing law."

There was, in fact no statute as to reopening, but the "existing law" was the rule and usage of the Department, having the effect of a regulation, (Rev. Stats., 161; U. S. vs. Barrows, 1 Abbott, U. S. R., 351,) that a rejected claim would not be reopened unless for error in calculation or the discovery of new evidence previously unknown, and which could not have been procured; adopting the principle as to new trials in the courts. (1 Graham & Waterman on New Trials, ch. XIII, p. 462; 3 Id., ch. XII, p. 1016, &c.; Hilliard on New Trials, ch. XV, pp. 491, 516.)

This rule became law as to the class of cases to which it refers, by force of the manifest purpose of Congress in the acts referred to in the decision of April 20, 1877, of the Secretary, as to "accrued claims,” quod vide. (See authorities above, and 10 Op., 56.)

3. This rule has generally (though possibly not absolutely in all cases) acquired the force of a "regulation" as to all claims once examined and rejected. (Rev. Stats., 161; U. S. vs. Barrows, 1 Abbott, U. S. R., 351; U. S. vs. McKee, 1 Otto, 442; Wood's case, this vol., ante, 9.)

II.-The power to examine claims when there is no appropriation for payment.

a. This claim is not, for reasons already stated, liable to the objection that there is no appropriation to pay it.

b. Claims founded on a statutory and fixed liability of the Government, as salaries, &c., may exist without an appropriation to pay; but they are claims, and may be properly, or as a matter of right, examined and certified by the proper officers of the Treasury. (Rev. Stats., 236, 269, 277, &c.; Collins vs. U. S., 15 Ct. Cls., 22; Rev. Stats., 3732; 1 Ct. Cls., 381; 13 Ct. Cls., 303, 309; see Butler vs. Bates, 7 Cal., 136; Hommerich vs. Hunter, 14 La. Ann., 225; Thomas vs. Owens, 4 Md., 189.) The time within which these and similar claims may be examined and certified will be considered hereafter.

2. As to unliquidated demands:

(1.) The statute requires money appropriated for a given purpose to be applied solely to that purpose, and prohibits expenditures in excess of appropriations. (Rev. Stats., 3679, 3680, 3732, 3733, 5503; act Aug. 15, 1876; 19 Stats., 169, sec. 5.)

(2.) Still there are contracts authorized for the necessities of the service even beyond appropriations. (Rev. Stats., 3732.)

This will sometimes happen under general or special laws. These demands, being in pursuance of law, may properly be audited and certified, although there be no existing appropriation to pay them. (3.) But if officers exceed their power in incurring liabilities, under such circumstances that claimants are not chargeable with notice. thereof, as in the purchase of supplies beyond an appropriation, the duty of auditing or certifying claims presented after the limit of the appropriation had been reached might not be so clear.

If an authority to make purchases under an appropriation act be exceeded in violation of law, (Rev. Stats., 3679,) it may well be doubted if a claim arising on such excess would be a claim under an exhausted appropriation within the act of June 14, 1878. (20 Stats., 130.)

(4.) Claims may arise founded on statutes fixing specific amounts as salaries, &c., or on appropriations for given objects, (Rev. Stats., 3732,) or in the expenditure of contingent funds, under discretionary powers, to which the foregoing principles would apply.

III.-As to limitation statutes:

1. The act of June 14, 1878, expressly limits the power of Executive officers to examine for payment those claims which may be brought before them within five years from that date, arising "under appropriations, the balances of which have been exhausted or carried to the surplus fund."

So there may be other limitations, in terms or by implication.

2. By force of the act of June 20, 1874, (18 Stats., 110,) and the decision of the Secretary of the Treasury of April 20, 1877, claims,

generally, under appropriations can only be considered and certified for payment within three years from the date when the appropriations become available.

The act, however, excepts from its operation five classes of claims, which may be examined and certified at any time until payment would be presumed at common law.

These exceptions are

"First. Permanent specific appropriations.

"Second. Appropriations for rivers and harbors, and various public buildings and improvements, which, from their nature, must be continuous, extending through several years.

"Third. The pay of the Navy and Marine Corps, as from the nature of the service, it must often be performed in distant seas, during cruises for three years.

"Fourth. Claims arising under certain sections of the treaty with Great Britain, of May 8, 1871.

"Fifth. Contracts existing June 20, 1874."

It is to be observed in this connection that claims under "permanent annual appropriations" fall within the limitation of three years. Thus, the Secretary, in his decision of April 20, 1877, says:

"A specific appropriation is one where the amount, the object, or the person is designated particularly or in detail. It may be, and usually is, permanent in terms, because not limited as to time, like an annual appropriation; but there is a wide distinction between a permanent specific appropriation and a permanent annual appropriation.

"A permanent annual appropriation contemplates that a liability will accrue in the future, from time to time, and that when it accrues it may be paid from the Treasury, subject to the same general laws as to time, 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 lapse of time.

"The mere fact that an appropriation is, in form, a permanent 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. * * [Ashton's case, post, 167; Rev. Stats., 269, 305, 311, 3691, 3698, page 74, post.] 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 Treasury, 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."

In an opinion of Hon. A. G. Porter, First Comptroller, May 6, 1880, on the claim of the State of Kansas to five per cent. of the net proceeds of sales of public lands in said State, in discussing the "permanent annual appropriation," made by section 3689, Revised Statutes, page 728, as to said five per cent., he said:

"Section 5 of the act approved June 20, 1874, (18 Stats., 110,) directs the Secretary of the Treasury to 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. And the Secretary of the Treasury, on the 20th of April, 1877, decided that the appropriations contained in section 3689, Revised Statutes, came within the operation of this act.

"As the amount owing to the State was not ascertained to be due within two fiscal years since the claim accrued, the appropriation from which it would properly be payable has, therefore, been covered into the Treasury.

"The fourth section of the act approved June 14, 1878, makes it 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 that may be brought before them within a period of five years. And the Secretary of the Treasury is, by the act, directed to 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."

The subject of appropriations is fully discussed in letters of the Secretary of the Treasury, of December 14, 1877, and April 20, 1877. (House Ex. Doc., No. 27, 2d sess. 45th Cong.)

The result is, that claims under either (1) annual or (2) permanent annual appropriations may be audited and paid at any time within