# United States v. McKee

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## Dissenting Opinion

    Clifford
United States Supreme Court
91 U.S. 442
United States v. McKee
APPEAL from the Court of Claims.
The court below allowed the claim, with interest thereon from the time it accrued, and, among other facts, found that 'no rules and regulations have heretofore been adopted by the United States in the settlement of like cases, except such as may be inferred from the policy of Congress when passing private acts for the relief of various persons. When passing such private acts, Congress has allowed interest upon the claim up to the time that the relief was granted.'
The facts are stated in the opinion of the court.
The case was submitted on printed arguments by Mr. Solicitor-General Phillips for the United States, and by Mr. William Penn Clarke, for the claimants.
Only so much of their argument as relates to the allowance of interest can be here given.
The Solicitor-General submitted, that, so far as he knew, this was the first case in which interest had been allowed for so long a period. The court below had allowed it from March the 20th, 1779, to the day when judgment was entered, although this court, in Gordon v. United States, had expressly declared that it did not sanction the allowance of interest on claims against the government. The right of the claimants to interest must turn entirely upon the wording of the act of 1872 referring this case to the Court of Claims, inasmuch as, under the general law, that court has no authority to allow interest in such a case. Rev. Stat., sect. 1091. Undoubtedly Congress has the power to order that interest shall be paid; but no such order was given by that act. The words relied on by the other side are, 'And, in making such adjustment and settlement, the said court shall be governed by the rules and regulations heretofore adopted by the United States in the settlement of like cases; giving proper consideration to official acts, if any have heretofore been had in connection with this claim, and without regard to the Statute of Limitations.' Referring to the specific finding of the Court of Claims upon this point, it seems,--
First, That 'rules and regulations,' in the above connection, refer to the action of the departments under general principles governing 'like cases,' and not to the exceptional dealing evidenced by special acts of Congress. Prior legislation for special cases is not included in these words. They are well known to refer to the quasi legislation by heads of departments, &c., in reference to matters ordinarily coming before them.
Second, Also that the court will sua sponte inform itself of the action of the United States by rules and regulations in such cases.
Third, Therefore that the above finding of the Court of Claims appears to be inadvertent, inasmuch as it can be seen that 'rules and regulations' have been heretofore adopted by the United States in the settlement of like cases, and that these rules exclude interest, unless given in terms by an act of Congress.
The Solicitor-General inserted in his brief the following note from the First Comptroller of the Treasury:--
'FIRST COMPTROLLER'S OFFICE, NOV. 13, 1875.
'SIR,-In answer to your inquiry, I have to state, that in the adjustment and settlement of claims for services rendered by officers of the United States during the Revolutionary war, or for supplies furnished the troops in that war, the rules and regulations heretofore adopted by the United States prohibit the payment of interest, unless authority to pay is expressly given by act of Congress in special cases.
'Executive document No. 42, vol. ii., second session Twenty-fifth Congress, contains a synopsis of the legislation of Congress on Revolutionary claims up to 1837, showing the cases in which interest has and has not been allowed.
'Very respectfully,
'R. W. TAYLOR, Comptroller.
'Hon. S. F. PHILLIPS, Solicitor-General.'
And referred to the opinion of Mr. Whittlesey when first comptroller in regard to a claim for interest upon a Revolutionary debt preferred by the heirs of one John Campbell:--
'The rules of settlement of the treasury do not permit the allowance of interest, except where it is specially provided for in cases of contracts, or expressly authorized by law. Consequently, the item of interest charged by said claimant has been deemed inadmissible.'The act which made it the duty of the Treasury Department to audit and adjust that claim required that this should be done upon principles of equity and justice. Upon this point Mr. Whittlesey says,--
'Suppose the act had directed the account to be settled and paid, and had said nothing more: interest could not have been computed without violating the principles which have controlled the settlement of accounts and claims from the commencement of the government; and, as I have said before, the discretion to settle the claim on the principles of 'justice and equity' does not confer the power to allow interest.' P. 53.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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