#### THE STATE OF NEVADA v. THE UNITED STATES.

[Departmental,

79.

Decided March 14, 1910.]

*On the claimant's Motion.*

The State of Nevada claims reimbursement for expenses “ *property incurred 6y said State*” “ *in enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding in suppressing the present insurrection,’’*also interest for money borrowed to enable the State to meet its obligations under the act 27th July, 1861, and the joint resolution 8th March, 1862.

*255I.Whatever valid claim exists in favor of the State of Nevada for reimbursement for moneys expended in raising troops to aid in suppressing the rebellion accrued, if at all, under the *Act 27lh July 1861*(12 Stat. L., p. 276). The only office of the *Acts 14th February, 1902,*and *27th May, 1902*(32 Stat. L., pp. 30, 207, 235), is to give the State a right to assert a claim for expenses incurred by the Territory of Nevada.

II. The *Acts 27th June, 1882*(22 Stat. L., p. Ill) ; *4th August, 1886■*(24 Stat. L., p. 217) and *9th March, 1899*(30 Id., p. 120), do not in any way change or enlarge the liability of the United States to the State of Nevada as it previously existed under the acts 1861 and 1862.

III. The officer commanding the Department of the Pacific in 1861, 1862 was authorized by the War Department to call for troops from the Territory of Nevada, but could not enlarge the liability of the United States under the acts 1861, 1862.

IV. The acts 1861, 1862 should be given a liberal construction, but not such as would defeat the legislative intent, which was that the State should be reimbursed only for “ *expenses properly incurred, ”*in equipping troops, reserving to the accounting officers the right to determine whether such expenses had been properly incurred.

V.The States raising and equipping troops for the suppression of the rebellion acted as agents of the United States, but could not go beyond the limit of their agency as defined by the terms of the statutes under which they acted.

VI.The Treasury rules for the settlement of such claims, contemporaneous with the statutes, provided that “ *bounties or donations to men or their families to mduce men to volunteer will not be recognized."*This is a construction given to the acts 1861, 1862 which has been adhered to for nearly fifty years, and should not be overthrown except for cogent reasons.

VII.Extra pay is something additional to the regular pay and allowances authorized by Congress, and. comes within the prohibition of “ *bounties*” in the rules, and is not an expense properly incurred.

VIII.Where an expense incurred has been allowed by the accounting officers as “ *properly incurred*” the State is entitled to interest paid on money borrowed for that expense. The interest, when paid, became principal as between the State and the United States. What the rate of interest should be is left to the accounting officers to ascertain, it being “ *such interest as toas customary in the commercial world.”*

*256
      *The Reporters’*statement of the case:

Counsel for both parties in this case joined, in a motion for a reference to the auditor to examine and state an account between the parties, but action on the motion was suspended until the court .should hear and consider the questions of law involved, and for that purpose the motion was placed upon the law calendar. On the hearing, not only the motion, but the whole case was argued by counsel.

*Mr. Jackson H. Ralston*and *Mr. William, E. Richardson*for the claimant. *Mr. John Mullan*and *Mr. Frederick L. Siddons*were on the brief.

The rule of construction to be applied to the act, determined and applied by the Supreme Court in the *New York*case, which is directly applicable to the present case, is that the propriety of a disbursement by the State is to be determined by the necessity then existing — not by ascertaining whether the Government paid or incurred similar expenses. This latter has been the rule erroneously adopted by the accounting officers of the Treasury Department, and gave rise to the controverted question of law upon which the present case has been referred to this court for determination.

In the *New York case*the vital question was rather one of whether the expenditures for interest charges were so directly connected with the cost of recruiting that they might be allowed under the act of July 27, 1861. For that reason perhaps the question did not arise in that case as to the conclusiveness of the State’s judgment upon the necessity or propriety of a given item of expense.

It is interesting and necessary in the present case to analyze the act of Congress of July 27, 1861, to determine the exact status of the State thereunder and its precise relation to the General Government.

The first clause of the act—

*“Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That the Secretary of the Treasury be, and he is hereby, directed, out of any money in the Treasury.not otherwise appropriated, to pay to ”— *257is the usual formula found at the beginning of every appropriation bill, and the reference therein to the Secretary of the Treasury can not be considered to contemplate more than the authority granted that officer to direct the disbursement of a portion of the government moneys upon the issuance of the proper warrant. To hold that this confers any special powers would be to put a strained and forced meaning to words that have acquired for many years a certain fixed and definite meaning.

The remainder of the statute, with which we are most concerned, designates what shall be paid — the costs, charges, and expenses properly incurred by such State for enrolling, paying, etc., its troops — employed in aiding to suppress the rebellion “to be settled upon proper vouchers, to be filed and passed upon by the proper accounting officers of the Treasury.”

As the Supreme Court has declared, this statute made the State the agent of the United States for the purposes named.

The statute is remarkable from the importance of the subject-matter and the absence of any restrictions defining the manner in which the agent is to proceed or the character or amount of expenditures to be incurred. The absence of such restrictions plainly implies that judgment and discretion shall be exercised on the part of some one. •

In incurring and paying these expenses the State is not given the protection of being placed under the guidance or direction of any department or officer. The only protection afforded is the direction of the act that the costs, charges, and expenses “properly incurred” for the purposes named shall be repaid — not merely a contract, but a compact of indemnity. Until it has incurred the expense, paid and received its voucher for the amount due, and filed its voucher with the accounting officers of the Treasury Department, it has acted solely upon its own judgment and discretion in incurring and paying “ proper ” expenses.

Would it be giving to the act the intent declared by the Supreme Court in the New York case to hold that the judgment of the State upon such a question is subject to be re*258viewed and reversed by the accounting officers without a positive direction from Congress to that effect?

The State under the act of 1861 was *fro hao vice*the agent of the United States and coordinate with the War Department. It was created by Congress a direct agency to perform duties properly belonging to that department. The necessities of the occasion required the exercise of broad and discretionary powers. It would be absurd to believe that Congress intended this agency to be subject in its most vital point — the securing of recruits — to limitations to which the War Department would not be subject.

The reference to the filing of vouchers to be “ passed upon by proper accounting officers of the Treasury ” is not a special provision of law in this act, but the counterpart of the provision relating to all executive departments. (Rev. Stat., sec. 277.) The construction by the courts of the rights and duties of the accounting officers is directly applicable.

A leading case upon this subject is that of the *United States*v. *Johnson*(124 U. S., 286).

In the case of the *United States*v. *Jones*(59 U. S. R., 96) the question arose directly upon the refusal of the accounting officers to pass in the accounts of Lieutenant Jones the sum of $1,000 allowed him by the Secretary of the Navy for expenses he had incurred in connection with certain injuries accidentally received while on leave of absence in Paris. This money was disbursed for the purpose designated by the Secretary of the Navy. The action of the accounting officers was based upon the fact that there was no statute authorizing the payment of such expenses, and by section 2 of the act of March 3, 1835 (4 Stat. L., 757), then in force, it was provided that no allowance should be made under any circumstances whatsoever to any officer in the naval service except of the allowances provided by that act.

It is shown by the dissenting opinion of Mr. Justice Daniel in this case that there was no express authority of law for making this allowance, which was not within the provisions of the law for the creation and application of the hospital fund. Mr. Justice Grier, however, delivering the opinion of the court, held that the exigencies of the service often required the employment of soldiers and sailors at a distance *259from public hospitals, and when the attendance of the medical officers can not be obtained; consequently, in fulfillment of the humane policy of the Government, it frequently becomes necessary to employ temporarily physicians not regularly commissioned. For in this way alone can the department perform the duty assumed by the Government of providing the necessary medical attendance for those who become sick or disabled in its service.

The duties of the accounting officers in passing upon allowances made by executive officers in the discharge of their duties imposed by law are fully considered in the cases of *McKnight*v. *United.States*(13 C. Cls. E., 292, 309) and *Barnett*v. *United States*(16 C. Cls. E., 516).

Eeturning now to the act of July 27, 1861, we find that the accounting officers have been given no greater powers than are properly exercised by an auditor in the statement of accounts upon vouchers submitted; that no officer or department is designated to pass upon the propriety of the state’s action in incurring the expenses incident to recruiting. This brings us directly to principles of general law to determine by what authority this question must be determined. We have seen from the direction of the Secretary of War to the State of New York, cited by Mr. Justice Harlan in the case of *New Torh*v. *United States {supra),*that the War Department did not attempt to define what measures should be adopted, but requested the adoption by the State of such means as were necessary to obtain the desired end, to wit, the securing of recruits. The term “ necessary ” in this connection is but a synonym for “ proper,” and this contemporaneous construction of the statute shows that the Secretary of War devolved upon the State the duty of determining what was proper.

The rule of agency whereby the right of the agent to do those things necessary to the proper execution of the purpose of his appointment has been expressed in Story on Agency, as follows:

“Whether the authority be expressed or implied it necessarily carries with it, or includes in it as an incident, all the powers which are necessary or proper or usual as means to effectuate the purposes for which the agency was created.”

*260This rule has been quoted with approval and cited as authority in numerous cases.

The State of Nevada was, under stress of public necessity, clothed with the authority and duties of a public officer, and of necessity there was a certain discretion confided to the State.

As has been stated by Judge Story in *Allen*v. *Blunt*(Fed. Cas. No. 216; 3 Story, 746):

“ When a particular authority is confided to a public officer to be exercised upon an examination of the facts of which he is made the appropriate judge, his' decision upon the facts in the absence of any controlling provision is absolutely conclusive as to the existence of those facts.”

In the case of *Luther*v. *Borden*(7 How., 1) one of the questions decided related to the action of the President under the act of February 28, 1795, giving to him the authority in case of insurrection in any State against the government thereof, on application of the legislature or chief executive when the legislature can not be convened, to call out the militia of any other State or States to suppress such insurrection.

The court held that the action of the President in determining all of the collateral questions incident to the execution of his duty under the act of Congress above referred to conclusively decided those questions in so far as all collateral attack was concerned. The general rule defined in this case may be found in the following quotation from the opinion:

“ Whenever a statute gives a discretionary power to any person to be exercised by him upon his own information of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.”

Comparison of the wording of the act of July 27, 1861, with the general rule of liability of a principal to reimburse his agent for expenses incident to his acts under an authority granted shows that, in making the provisions for indemnity Congress merely affirmed as to the agency created under that act the general law of agency. Had Congress merely authorized and permitted the State to act as agent for the United States in enrolling, subsisting, etc., troops, the State would *261have been entitled to reimbursement and the measure of responsibility would have been identical with that stated by Congress in the act; that is, for costs, charges, and expenses properly incurred. The general principle defined in the leading cases is stated in the American and English Encyclopedia of Law (2d ed., vol. 1, p. 1117) as follows:

“ The agent is entitled to reimbursement from, his principal for all advances and expenses made and incurred in carrying into effect the purposes of employment not in violation of the policy of law.

“Where, however, an agent makes expenditures in the principal’s business which might have been avoided by ordinary diligence or which are unauthorized, he is without remedy against his principal.”

We submit, therefore, that the State of Nevada, having in good faith paid for the use and benefit of the United States the moneys involved in this claim, is entitled, under the ordinary rules of law and justice, to the benefit of its determination of the necessity for these expenditures.

We might advert to the fact that there is an additional consideration which should induce the court to consider such matters of judgment and discretion as properly left to the decision of the State.

Congress in selecting the States to perform the duties of this agency evidently considered the fact that it was not dealing with an ordinary agent or constitutional officer subject to the usual temptations and frailties of individuals, which it has been the wisdom of the law to guard against in the dealings of the United States through its public officers. Had Congress passed an act authorizing the appointment of private individuals as agents for the purposes named, it would undoubtedly have placed them under the authority of some executive officer and specified fully the conditions and limitations under which the agency should be accepted and executed. The significant absence of such provisions in the act under which the State of Nevada made these disbursements should receive careful consideration. The good faith of the state legislature in directing the incurring of these expenses must be presumed and can only be rebutted upon the most cogent proof of an improper motive.

*262It is claimed by the State that the disbursements made were for the purpose of securing the requisite number of troops, and in the numerous investigations made under the direction of Congress by the War and Treasury departments and in congressional reports and debates the truth of this assertion has never been questioned. The fact that Nevada passed its act of March 11,1865, under which these disbursements were made, upon the suggestion of the military officer of the United States commanding the Department of the Pacific, should, we think, be accepted by the court as conclusive evidence of the existence, first, of a pressing need for the services of additional recruits, and, second, of the necessity for providing such measures in order to secure these recruits. For this reason we refrain from a detailed discussion of the local conditions, the existence of which is established in the official correspondence of the War Department, a printed transcript of which is among the papers transmitted from the Treasury Department with this case.

The scope of the powers of the commanding officer of a military department was considered in the cases arising under contracts made by Major-General Fremont, commanding the Western Department during the early part of the civil war. While those cases have no bearing upon the present case in so far as the validity of the exercise of powers under the act of 1861 by the State of Nevada is to be considered, they are important in defining the authority of the officer commanding the department to determine the existence of a public exigency. *(Stevens*v. *United*States, 2 C. Cls. R., 95.)

The troops raised by Nevada through the measures provided by its legislature were, with full knowledge on the part of General Wright, accepted for the service of the United States, mustered into that service, and actually employed in the common defense. This court, first in the Fremont contract cases, and subsequently in many cases, has held that the acceptance of a benefit by the United States creates an obligation to make compensation, which can be enforced by suit. *(Reeside*v. *ü. S.,*2 C. Cls. R., 1; *Burched*v. *U. 'S.,*4 id., 549; *Mudgett*v. *ü. S.,*9 id., 467; *0oilier*v. *U. S.,*22 id., 125; *Oarroll*v. *ü. S.,*20 id., 426.)

*263Such is also the rule of the common law. *(McGlary*v. *R. Co.,*102 Mich., 312; *Shelton*v. *Johnson,*40 Iowa, 84; *Ghamness*v. *Cox,*2 Ind. App., 485; *Rockford R. Go.*v. *Wilcox,*66 Ill., 417; *Blount*v. *Gutterie,*99 N. C., 93; *Rowell*v. *School District,*59 Vt., 658; *Wheeler*v. *Rail,*41 Wis., 447; *Ray*v. *Peterson,*6 Wyo., 419.)

The fact that it was the duty of the United States to provide these troops must not be passed over without due consideration. The troops were used for the common defense — not merely for the protection of the State of Nevada.

The doing of an act which another is properly obliged by law to perform, where that other fails and circumstances of urgent necessity admit of no time for delay, may alone be made the basis of an action for compensation.

*Mr. A. G. Gampbell*(with whom was *Mr. Assistant Attorney-General J ohn Q. Thompson)*for the defendants:

Said Mr. Justice Miller, speaking for a majority of the court, in the celebrated case known as *The Floyd.Acceptances*(7 Wall., 666, 676):

“ The Government is an abstract entity, which has no hand to write or mouth to speak, and has no signature which can be recognized, as in the case of an individual. It speaks and acts only through agents, or, more properly, officers.”

The officers of the Government are public agents. Their acts may be inquired into — be reviewed and corrected. (See *Floyd Acceptances, supra.)*And unless it manifestly appears that they were acting within the scope of their authority the Government is not liable. *(Whiteside*v. *United States,*93 U. S., 247,257; *Rawlcins*v. *United States,*96 U. S., 689, 692, 693.) It can not be denied that when a State acts as the agent of the United States it belongs to the category of public agents. Consequently when it so acts its authority is defined and limited by the federal statutes, and the liability of the Government for its acts is determined by the principles applicable to transactions between public agents and the Government. If, therefore, the Government could not be held liable for the claim in question, provided the expenditures represented thereby had been incurred by its officers, *264who are public agents, then it can not be held liable' to claimant.

In view of counsel’s admission, viz: “All of the disbursements embraced in this claim were made pursuant to legislative acts,” and in view of their failure to deny the following statement contained in the comptroller’s letter of September 30, 1903, page 18, viz: “The troops of Nevada received from the United States the full pay and allowances of regular officers and enlisted men for the years 1863, 1864, 1865, and 1866,” it would seem to be unnecessary to establish the proposition that no officer of the Government had authority to incur the expenditures in question.

The contention of counsel, however, seems to be based mainly upon the proposition that the said act of July 27, 1861, impliedly empowered the States solely to determine what expenses were necessary to incur in order to aid in the suppression of insurrection; to borrow money on the credit of the United States for such purpose; and to contract to pay interest thereon at a rate to be determined by them.

Counsel for defendant insists that such contention is not tenable, for the reason that the proposition upon which it is based is unsound.

In view of defendant’s concessions, but two questions need be considered in order to ascertain the soundness of claimant’s main proposition and to determine the correct answer, to be given to the main question now before the court. These questions are:

1. Whether for money necessarily borrowed and properly expended by a State under the act of July 27, 1861 (supra), the Government is liable to reimburse the State at a rate exceeding 7.3 per cent per annum.

2. Whether said act empowered a State to pay bounties to officers and extra pay to enlisted men other than as authorized by acts of Congress to be paid by officers of the Government.

In regard to the first question it would seem from the acts of July 27,1861, and August 5,1861 (12 Stat., 259-313), that the officers of the Government, as its agents, were not authorized to pay more than 7.3 per cent per annum as inter*265est on money borrowed to be used in tbe suppression of the civil war. There is nothing in the said act relied upon by counsel which empowers a State, as agent of the Government, to pay more than Y.3 per cent per annum. It would therefore seem to follow that a State, as agent, was restricted to Y.3 per cent per annum, so far as the liability of the Government is concerned. There is nothing in the opinion of the Supreme Court of the United States in the *New York case*which conflicts with this view. In that case, as also in the *Pennsylvania, Maine, New*Hampshire, and *Rhode Island eases {supra),*the claims for interest did not exceed Y per cent per annum.

In respect to the second question, not only is there no language employed in the act relied on by counsel which justifies the construction invoked by them, but from the time of its passage to the present time it has received a contrary interpretation.

Tule YIII of the “Rules for the preparation and settlement at the Treasury Department, under acts of Congress approved July 1Y, 1861, and July 2Y, 1861, of claims for reimbursement of expenses properly incurred by the States, respectively, on account of their troops employed in aiding to suppress the present insurrection against the United States,” promulgated by Secretary Chase, provided as follows :

“ Bounties or donations to men or their families to induce men to volunteer will not be recognized. Such bounties as may be authorized by law will be paid by the United States directly to the men authorized to receive them. Voluntary contributions, either by States or local corporations or by individuals, in aid of families of volunteers, etc., constitute no charge against the United States, and will not be refunded.”

The contemporaneous construction thus placed upon said act of July 2Y, 1861, by Secretary Chase has never been questioned heretofore by any State in this court.

It is hornbook law that a contemporaneous construction of a statute by an officer whose duty it is to administer the same will after a lapse of time and without any change by the legislature or the courts, be held to be the best construction. *266And if such construction is “ followed and acquiesced in for a long period of years afterwards it is never to be lightly disregarded, and is often conclusive.” (Suth. Stat. Const., sec. 307.) It is settled law in the Supreme Court that the construction of a statute by the head of an executive department which has been long recognized and acted upon “ should not be overthrown, unless a different one is plainly required * * ***by the words of the act.” *(Hawley*v. Diller, 178 TJ. S., 478, 488; *Hewitt*v. Schultz, 180 U. S., 139, 156,157.)

If the power of a State in the premises was coordinate with that of the War Department, then a State was limited to such expenditures as could be incurred by the officers of that department. And it can not be successfully maintained that such officers could pay any bounties or extra pay without authority from Congress.-

It’ can not be successfully denied that expenditures incurred by the Secretary of War to aid in the suppression of the civil war before they were paid were examined and their legality and correctness passed upon by the accounting officers of the Treasury Department. If the acts of the Secretary of War in the premises could be thus revised and corrected, it would seem that the power devolved by him upon a State would be coupled with the same power of review and revision by the officers of the Treasury Department.

If Congress intended by said act to confer authority upon the Secretary of War to devolve upon a State the power to determine what expenses were necessary to be incurred to aid in the suppression of civil war, then the duties enjoined by the act upon the Secretary of the Treasury and the accounting officers under him were ministerial merely. If these duties were ministerial and not judicial in character, then in the event that the accounting officers refused to allow the accounts presented by the governor of a State for expenses alleged to have been incurred to aid in suppressing insurrection, or the Secretary of the Treasury refused to pay the same, the State could have successfully resorted to the extraordinary proceedings by way of mandamus to compel said officers to allow, and the Secretary of the Treasury “ out *267of any money not otherwise appropriated, to pay the governor ” of such State said accounts so presented by him. *(Kendall*v. *Stohes,*12 Pet., 524; *Roberts*v. *United*States, 176-U. S., 221.)

Therefore one of the tests to apply to said act in order to determine whether it was intended to confer upon a State the sole power of determining what expenditures should be incurred to aid in the suppression of insurrection is, whether the duties of the officers of the Treasury Department provided for in said act were ministerial or judicial in character. If such duties were of the latter class, obviously the State did not have the sole power to determine what expenses were necessary and proper to be incurred. It is respectfully submitted that the duties of the officers of the Treasury enjoined by the act were judicial and not merely ministerial in character. (See *Mississippi*v. Johnson, 4 Wall., 475,498; *Gaines*v. Thompson, 7 *ib.,*347, 358; *United States*v. Seaman, 17 How., 225; *Redfield*v. *Windom,*137 U. S., 636.)

A judicial duty is thus defined:

“ Where the act involves the exercise of discretion in determining whether the right exists or a duty is to be performed in the particular case.” (See *Seymour*v. *United*States, 2 App. D. C., 247.)

The distinction between judicial duties, such as require the exercise of judgment and discretion, and duties ministerial, is thus stated by Merrill on Mandamus, sections 30, 31:

“All acts or duties depending upon a decision of a question of law or the ascertainment of matters of fact by the officer or tribunal charged with the duty are considered to be judicial.

“A ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the acts to be performed.”

By comparing *Kendall*v. *United States ex rel. Stohes*(12 Pet., 524) and *Roberts, Treasurer, etc.,*v. *United States*(176 U. S., 221), where it was held that the duties involved were ministerial, with *United States*v. *Seaman,*supra, and *Red-field*v. *Windom, supra,*where it was held that the duties in*268volved were of a judicial character, the distinction between the two classes is plainly seen. And by comparing the duties enjoined upon the officers of the Treasury Department by the said act of July 27,1861, with the duties which were enjoined upon Seaman and upon Windom, as seen in their cases, and which w‘ere held not to be ministerial in character, it becomes apparent that the duties of the Treasury officials under said act were of a judicial nature.

The fact that no application has ever been made by any State to compel, by mandamus proceedings, the allowance and payment of any claim or part of a claim presented under said act, and the further fact that “ occasions have not been wanting,” would seem to indicate that in “ the general judgment of the profession ” the duties of the officers of the Treasury Department under said act were judicial in their nature, and that an application for a mandamus against such officers Avould not have been entertained by the courts. (See *Mississippi*v. Johnson, *supra,*500.) If the duties of such officers under said act were not of a ministerial character, then manifestly they had the power to review the acts of the respective States in incurring the expenses presented by them for allowance and to determine whether such expenses had been properly incurred.

But should it be conceded that said act does attempt to confer upon a State the power claimed by counsel for claimant, then to this extent it would be invalid, for the reason that by Article I, section 8, of the Federal Constitution, Congress is given the power by legislation “to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense; ” also “ to borrow money on the credit of the United States.” This power is an essential attribute of national sovereignty and one that is necessary for the preservation of the nation, and while it may be conceded that for convenience Congress may intrust the exercise of this power to a public agent, yet it is respectfully submitted that the power itself can not be bargained away. (See *Illinois*v. *Illinois Cent. R. R. Go.,*146 U. S., 387, 453.)

Inasmuch as Congress, under the Constitution, must lay the taxes necessary, and in order to pay the debts which have been contracted to provide for the common defense, *269and to enact laws to provide for the borrowing of money on the credit of the nation, it would be strange' doctrine to hold that it could wholly divest itself, and the officers it has created, of the power to determine what debts were necessarily and properly contracted to provide for the common defense or to delegate to a State the power to absolutely determine upon what conditions money might be borrowed “on the credit of the United States.” It would therefore seem that, under the Constitution, Congress must of necessity reserve to itself the power to ultimately pass upon all alleged debts or obligations contracted “ to provide for the common defense” for which the nation is liable, although it may, for convenience, intrust the exercise of the power to officers of its own creation or to a State.

In this connection it is pertinent to state that there is a distinction, frequently overlooked, between the delegation of a power and the delegation of authority to exercise a power. By section 3, Article IY, of the Constitution, Congress is empowered to legislate concerning the territory and the Territories of the United States. *(Kansas*v. Colorado, 206 U. S., 1.) The power to legislate can not be delegated. *(Union Bridge Company,*204 U. S., 364, 382, 383.) Ever since the formation of the Government Congress has delegated to territorial legislatures and to other tribunals created by it authority to exercise the power to legislate in respect to the Territories ánd territory. “And,” says the Supreme Court, in *Kansas*v. *Colorado, supra,*“ certainly, we have no disposition to limit or qualify the expressions which have heretofore fallen from this court in respect thereto.”

The power of a State to levy and collect taxes is a sovereign power to be exercised by the legislative, administered by the executive, and enforced by the judicial department. The States delegate and intrust the exercise of this power to officers of counties, municipalities, townships, and school districts, and have authority to do so. (Dillon Mun. Cor., vol. 2, 2d ed., sec. 741.) But Congress and the States in the instances mentioned retain control of the power. If Congress and the States could not delegate the exercise of the power conferred upon them, the wheels of government, National and State, would stop. If either should cease to *270retain control of such power, confusion would follow, and ultimately anarchy.

"VVe do not apprehend that counsel for claimant will contend that in respect to those matters committed to Congress by the Constitution it can absolutely delegate to a State the power to legislate concerning them. On the other hand, counsel for defendant concedes that Congress may enact a law whereby is delegated to a public agent, either individual or State, the “power to determine some fact or state of things upon which the law makes or intends to make its own action depend.” *{JJnion Bridge Company*v. *United*States, 204 U. S., 364, 383.) It is also conceded by defendant’s counsel- that when such fact or state of things have been found by such agent, ordinarily the findings can not be disturbed by the courts. (See *Johnson*v. Towsley, 13 Wall., 72, 83.) However, the administration of the said act of July 27, 1861, in no manner depended upon the finding of any fact or facts by the State.

It is difficult to understand upon what principle of law the Government can be held liable for any claim which may have arisen by reason of a request of one or more of its officers, unless such officer or officers were authorized by some act of Congress to make the request. No act of Congress has been cited by counsel for claimant and none exists, so far as defendant is advised, which authorized any military or other officer of the United States to request Nevada to enact laws providing for the payment of bounties to officers or extra pay to enlisted men. And, even though it should be conceded that the Nevada legislature passed the acts to allow the bounties to officers and extra pay to enlisted men, at the request of military officers of the United States commanding the department in which Nevada was situated, we respectfully submit that such request, unless previously authorized or subsequently approved by Congress, is not of binding force upon the Government.

We also respectfully submit that the Government can not be held responsible for benefits accepted in its behalf by its agents, unless Congress has previously authorized or subsequently sanctioned the same. The liability for benefits accepted is based upon the theory that thereby a contractual *271relation was created between the party which conferred and the party which received the benefits. As between an individual and the Government, or as between a State and the Government, the contractual relation must arise from and be based upon some law of Congress. Unless the authority of the Government’s agent to create the contractual relation can be traced to some act of Congress it does not exist.

Not only from what has preceded, but from what follows, it is manifest that Congress did not, by the acts of February 14,1902, .and May 27,1902, intend that the accounting officers should allow claimant reimbursement for the money borrowed to pay bounties and extra pay, or any interest on money borrowed and expended for such purposes. That body is presumed to have been cognizant of the construction placed upon said act of July 27, 1861, by the Secretary of the Treasury, Mr. Chase, and that such construction had never been questioned by any State, although several of them had allowed and paid bounties and extra pay, etc., and had not presented any claim or claims therefor to the accounting officers of the Treasury Department.

Peelle, Ch. J.,

delivered the opinion of the court:

This is the claim of the State of Nevada for reimbursement under the act of July 27, 1861 (12 Stat. L., 276), for expenses claimed to have been “properly incurred by said State ” under said act in “ enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding in suppressing the present insurrection against the United States,” including interest paid for money borrowed to enable the State to meet its obligations under the act, as amended by the joint resolution of March 8, 1862 (12 Stat. L., 615), construing said act “to apply to expenses incurred as well after as before the date of the approval thereof.”

Said claim, to wit—

> Abstract A.

> 1. Bounties paid to commanding officers of companies, $10 per capita for each recruit. $11, 840. 00

> *2.*Publishing the governor’s proclamation for volunteers_ 146. 05

> $11, 9SC. 05

> *272Abstract B.

> Various expenses of the adjutant-general’s office, including rent, clerk hire, traveling expenses, stationery, furniture, and miscellaneous supplies, etc_ 3,114. 48

> Abstract C.

> Extra pay to Nevada volunteers_ 6. 054. 78

> Abstract D.

> Extra pay to Nevada volunteers_ 1,153. 75

> Abstract E.

> 1. Salary of adjutant-general of State from January 7, 1862, to December 31, 1866_$6, 431.16

> 2. Contingent expenses of adjutant-general_ 1, 000. 00

> - 7, 431.16

> Abstract P.

> Transportation of arms, blanks, and stationery. 60.00

> 119, 800.12

> Abstract G.

> 1. Interest paid on $46,950.12 from February 10, 1865, to March 3, 1866, at 2 per cent per month (see Laws of Nevada, 1864-5, page 82, amended', see page 136, act of January 4, 1865)_ 11, 925. 33

> 2. Interest paid on $46,950.12 from March 3, 1866, to May 30, 1867, at 15 per cent per annum (see Laws of Nevada, 1866, page 47, act of January 19, 1866) _ 8, 744. 46

> 3. Interest paid on $119,800.12 from May 30,1867, to March 28, 1872, at 15 per cent per annum (see Laws of Nevada, 1867, pages 50 and 65, act of February 6, 1867)- 86,755.25

> 4. Interest paid on $119,800.12 from March 28, 1872, to January 1, 1883, at 91 per cent per annum (see Laws of Nevada, 1871, page 84, act of February 27, 1871)_ 122, 472. 33

> 5. Interest paid on $119,800.12 from January 1, 1883, to July 31, 1904, at 5 per cent per annum (see Laws of Nevada, 1877, page 191, act of March 8, 1877)_ 129, 276. 30

> Total-47S, 973. 79

*273-embracing all items accruing up to January 1, 1883, was presented to the Secretary of the Treasury January 13, 1888, apparently under the act of June 27,1882 (22 Stat. L., 111), as under that act there was allowed on Abstract A, $146.05; Abstract B, $2,878.13; Abstract E, $5,475.43; and Abstract F, $60; or,- in all, $8,559.61, leaving, as claimed, due and unpaid $470,414.18.

Subsequently said claim was, by the act of March 3, 1899 (30 Stat. L., 1206), “referred to the Secretary of the Treasury to investigate and report to Congress at the next session the amount furnished by said State of Nevada or by the Territory of Nevada and assumed by the State in aid of the suppression of the rebellion,” with the interest actually paid thereon.

Thereafter, under date of January 18 and June 8, 1900, the Secretary of the Treasury, in compliance with said act, reported to Congress his findings, showing that the amount, including interest expended up to June 30, 1889, was-$412,600.31, and that the amount subsequently paid, as shown by certificate of the state comptroller, if correct, was $58,401.27, of which amount the State was reimbursed April 8, 1888, $8,559.61, leaving $49,841.66, or expended in all, less said credit, as shown by his report, $462,441.97.

Thus the matter seems to have rested until the passage of the act of February 14,1902 (32 Stat. L., 30), making appropriations to pay the claims of the States of Maine, New Hampshire, Pennsylvania, and Rhode Island for expenses incurred by them, respectively, in which act, among other things, it was provided that the claims of like character arising under the act of July 27,1861, and the joint resolution of March 8, 1862 ( *{supra),*“as interpreted and applied by the Supreme Court of the United States in the case of the State of New York against the United States” (160 U. S., 598), “not heretofore allowed or heretofore disallowed by the accounting officers of the Treasury, shall be reopened, examined, and allowed, and if deemed necessary shall be transmitted to the Court of Claims for findings of fact or determination of disputed questions of law to aid in the settlement of the claims by the accounting officers.”

*274What action, if any, was taken in the department under said act does not appear. But thereafter by the act of May 27, 1902 (32 Stat. L., 207, 235), making appropriation for the payment of certain claims, it was among other things provided “ That the claim of the State of Nevada for costs, charges, and expenses properly incurred by the Territory of Nevada for enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding to suppress the insurrection against the United States, war of 1861 to 1865, under the act of Congress of July 27, 1861 (12 Stat., 276), and joint resolution of March 8, 1862 (12 Stat., 615), as interpreted and applied by the Supreme Court of the United States in the case of the State of New York against The United States, decided January 6,1896 (160 U. S., 598), not heretofore allowed, or heretofore disallowed, by the accounting officers of the Treasury, shall be reopened, examined, and allowed, and if deemed necessary, shall be transmitted to the Court of Claims for findings of fact or determination of disputed questions of law to aid in the settlement of the claims by the accounting officers.”

Under that act, as well as under the act of February 14, 1902 (supra), the Secretary of the Treasury transmitted said claim to the court as involving controverted questions of fact and law. With his letter he transmits a communication to him from the Comptroller of the Treasury, in which, after setting forth the several claims, their origin and character, he submits to the court for its determination three questions as follows:

1. Under the act of February 14, 1902 (32 Stat. L., 30), what classes of expenditures should be allowed the State of Nevada, and in what amount?

2. Under the act of May 27, 1902 (32 Stat. L., 235, 236), what classes of expenditures should be allowed the State of Nevada, and in what amounts?

3. And in respect to the interest charges allowable under both acts, “What sums properly expended by the State or Territory of Nevada were paid by bonds or from funds realized from the sale of bonds, and what were the expenses in connection therewith and what interest was paid thereon? *275In short, what was the total amount expended by the State in securing funds for expenditures properly incurred and paid?”

Questions 1 and 2, though referring to different acts of Congress, embracing the claims of the Territory, as well as the State of Nevada, are in legal effect the same, as each incorporates and makes part thereof the act of July 27, 1861, as interpreted by the Supreme Court in the case of the State of New York (supra), under which claim is made for reimbursement for expenses incurred under said act. Both acts operate to give the claimant a rehearing in the Treasury Department and a reinvestigation of its claim, and if deemed necessary by the Secretary, he is authorized by both acts to transmit the claim to the Court of Claims for findings of fact or determination of disputed questions of law, or both.

The third question embraces expenses alleged to have been properly incurred that were paid by bonds, or the proceeds arising therefrom, together with expenses in connection therewith and the interest paid on said bonds. However, whatever claims accrued in favor of the State or Territory of Nevada against the United States accrued, if at all, under the act of July 27, 1861, and not under either of the other acts mentioned, their office being as above mentioned, and to give the State the right to assert a claim for expenses likewise incurred by its predecessor, the Territory of Nevada, thereby placing the Territory on the same basis as the State in respect to such claim.

Counsel for the respective parties heretofore joined in a motion for the reference of the case to the auditor to examine and state the account between the United States and the State, and its predecessor, the Territory of Nevada, but action on said motion was suspended until the court had heard and considered the question of law involved under the reference, and for that purpose the motion was placed upon the Law Calendar. The case was heard on December 20, 1909, at which time not only the motion but the whole case was argued and submitted to the court.

We have then to consider whether the claims herein for reimbursement are properly chargeable against the United *276States under the act of July 27, 1861, as amended by said joint resolution of March 8,1862 *(supra).*

The contention of the claimant is that the expenses incurred by the State were, in effect, in its sovereign capacity, though conceding its agency, and that the amount so expended, in the absence of fraud, is not subject to review by the accounting officers; while, on the other hand, the defendant’s contention is that the claimant, as State or Territory, in incurring the expenses to aid in suppressing the rebellion acted as the agent of the United States; and thus acting, the State was limited by the law the same as other agents or officers of the United States, and that therefore only such “ costs, charges, and expenses ” as were “ properly incurred ” by the State or Territory for the purposes set forth in said act are allowable.

The rules and regulations promulgated by Secretary Chase (afterwards Chief Justice of the United States) for the investigation and reimbursement of expenses under said act provide:

> *uBuies for the preparation and settlement at the Treasury Department, under acts of Congress approved July 17, 1861, and July 27, 1861, of claims for reimbursement of expenses properly incurred by the States, respectively, on account of their troops employed in aiding to suppress the present insurrection against the United States.*

> “I. Accounts, with vouchers for all expenditures made, must be presented to the Secretary of the Treasury, by whom they will be referred to the proper accounting officers for investigation and settlement. ‘

> “ II. It is only for expenditures on account of troops, officers, or men that have been or may be mustered and received into, or actually employed in, the service of the United States that reimbursements will be made. Organizations raised, or attempted to be raised, but not mustered and received into, nor actually employed in, the service, will not be recognized. Nor will any reimbursement be made by the United States of expenses incurred in organizing, equipping, and maintaining troops for state purposes, or home guard, whether called out by state or other local authority, unless such troops were called out and such expenditures incurred at the request or undei the authority of the President or the Secretary of War.

> *277“III. Personal expenses of commissioned officers in recruiting their companies prior to their being mustered into service will not be allowed; but commissioned officers may be allowed the same rates for subsistence and quarters (board and lodging) as privates, from the date of enrollment until mustered into service. The necessary and actual traveling expenses of recognized military agents of the State, when accompanied by bills of particulars and receipts for payments, will be refunded.

> “IV. Bills of particulars, with dates and rate of charge, and the receipt of the party to whom payment was made, must, in all cases, be furnished. It is not sufficient to show that a gross amount was expended, still less that sums were turned over to individuals to expend, without evidence showing that they were expended by them, and how they were expended. In short, *original vouchers for expenditures of every description*must be furnished. The expenditures should be classified, and separate abstracts, with the vouchers, presented for pay, subsistence, clothing, transportation, arms, and equipment, and other expenses; and they should also designate, as far as practicable, the particular regiment or corps on account of which the expenditure was incurred. Claims for pay of troops must be accompanied with complete pay rolls for each corps, properly certified and receipted, the same as are required in the regular service.

> “V. Where subsistence in kind could not be furnished, and expenses were incurred for ‘ board,’ or ‘ board and lodging,’ the rates will depend on the section of country where furnished, and the price paid for complete rations at the nearest recruiting station or military post, and in no case will a higher rate be allowed than the amount actually paid. The bills must specify the regiment or company to which the troops so subsisted or quartered belonged, and that rations could not be procured. Bills for lodging will be restricted to cases where there were no tents, and quarters could not be otherwise obtained. Purchases of subsistence in bulk will be paid for at not exceeding the current prices at the place of purchase, provided that the quantities are in proper proportions, or reasonably so, to the number of men according to the rates of allowance in the Subsistence Department. The articles of subsistence must be such only as are recognized in the regular service, or, if other articles are substituted, the cost of the whole must not exceed the regular supplies. Bills for spirituous liquors, treating, expenses of holding elections for officers, will not be recognized or paid.

> “VI. Transportation and quarters for troops at reasonable rates will be paid for. Transportation is restricted to *278the usual routes and modes of conveyance, and excessive quantities will not be recognized. Wagon hire for the transportation of the men themselves will not be sanctioned. Charges for transportation by railroad or other public conveyance must be accompanied by bills of lading in cases of property or supplies; and for troops, the number of men ' with the regiment or corps must be distinctly set forth, and where the same has been done in pursuance of a contract, the contract must accompany the vouchers. The same provisions apply to transportation by vessel.

> “ VII. Claims growing out of impressment of property or services, and for damages clone to individuals or their property, are not authorized to be paid. Provision for such claims must be made by special act of Congress, when not already provided for by general laws.

> “VIII. Bounties or donations to men or their families to induce men to volunteer will not be recognized. Such bounties as may be authorized by law will be paid by the United States directly to the men authorized to receive them. Voluntary contributions, either by States or local corporations, or by individuals, in aid of families of volunteers, etc., constitute no charge against the United States, and will not be refunded.

> “IX. Each State must present its full and final accounts for reimbursement, under the acts providing therefor, up to the date of the passage of said acts. The proper authorities of the State should certify over their official seals that the respective amounts claimed to be refunded have been actually paid by said State, and that no part thereof has been paid by any disbursing officer of the United States.

> “Approved:

> “ S. P. Chase,

> *“Secretary of the*Treasury.”

The above rules, which we are advised have from the beginning been applied by the accounting officers, outline the departmental construction of the acts, with the execution of which the Secretary of the Treasury was charged, and as they appear to be 'in harmony with said acts, the construction given thereto must now be upheld, unless there is something in subsequent legislation or in the decision of the Supreme Court in the case of *United States*v. *State of New York*(160 U. S., 598) enlarging the liability of the United, States.

The act of June 27, 1882 (22 Stat. L., 111), authorizing the Secretary of the Treasury to examine and report to *279Congress the amount of claims of Nevada and other States for money expended and indebtedness assumed by said States in *repelling invasion*and *suppressing Indian hostilities*between April 15, 1861, and the date of said act, is referred to by the comptroller in his communication to the Secretary transmitted to the court, and particular attention is invited to section 2 of this act, which in effect limits the rate allowed for the service of troops and for supplies, transportation, and other proper expenses that was allowed and paid by the United States for similar services of the same grade and for the same time in the United States Army serving in said States; and also limits the amount of such expenses of troops for the time they were engaged in active service in the field. But said act evidently has no direct application to the present claim and is not material in our view of the case.

The defendants call attention to the acts of August 4, 1886 (24 Stat. L., 217), and March 9,1899 (80 ibid., 120), the first of which provides for the use of certified copies as evidence of all original papers lost, and confers upon the Secretary of War authority to detail three army officers to assist in examining the claims of the States named in said act of June 27, 1882 (supra). The act of March 9, 1899, provides, as before stated, for the reference of the claim of Nevada to the Secretary of the Treasury for investigation and report to Congress. But neither of these acts in any way changes the liability of the United States as it previously existed under the acts of 1861 and 1862. Hence, as before stated, the sole question of law before the court is whether the expenditures for which claim is made by the State were “ properly incurred ” within the meaning of the acts of 1861 and 1862.

The question of the good faith of the State in incurring the expenditures for which it now claims reimbursement; the question of the pressing need of the State for troops during the period of the civil war; the duty of the United States to provide for the common defense, and the benefits which may have accrued to them from troops raised in Nevada to aid in protecting the Pacific coast, may all be conceded without enlarging the liability of the United States under the acts of 1861 and 1862. The commanding officer of the Department *280of the Pacific, while he could execute the orders of the War Department in calling for troops, could not enlarge the liability of the United States under the acts of 1861 and 1862, whatever authority he may have had as such commander in emergencies independently thereof.

These acts, as held in the *New York case (supra),*must be given a liberal construction, not, however, such a construction ' as will defeat the manifest purpose of the acts which Congress, had in view. That is to say, Congress, by the language of the acts, intended to reimburse States for “ expenses properly incurred” in equipping troops to aid in suppressing the rebellion, reserving, however, to the Secretary and to the accounting officers of the Treasury the right to determine for themselves whether or not the expenses for which reimbursement was sought had been so incurred.

The claimant concedes that all disbursements embraced in its claim “were made pursuant to legislative acts,” and,-as it asserts, were passed at the instance of the military officer commanding the Department of the Pacific. It appears from the comptroller’s letter — not controverted by the claimant— that the enlisted men of Nevada for the years 1863, 1864, 1865, and 1866 received from the United States the full pay and allowances of regular officers and enlisted men of the United States Army for those years and presumably as well any bounty which may have accrued to them.

We think it manifest, from the language of the acts of 1861 and 1862 that in so far as the State responded to the proclamation of the President for troops it acted as the agent of the United States; and if so, it follows that the State could not bind the United States outside the terms of the statute under which it acted. The claimant concedes the agency of the State, but insists that it acted in some extraordinary way, being different from an ordinary agent or constitutional officer, and that, therefore, in the absence of fraud, its action is conclusive.

In the *New York case (supra,*p. 621), except as to the jurisdiction of the court to render judgment under Revised Statutes, section 1063, and the question of the statute qf limitation, neither of which is material in the present case, *281but a single question was involved, or, as was said by the court, “ the only inquiry is whether, within the fair meaning of the latter act, the words ‘ costs, charges, and' expenses properly incurred’ included interest paid by the State of New York on moneys borrowed for the purpose of raising, subsisting, and supplying troops to be employed in suppressing the rebellion. We have no hesitation in answering this question in the affirmative.” Hence, the interest so paid was allowed not as interest, but, as the court held, because “ such interest, when paid, became a principal sum as between the State and the United States; that is, became a part of the aggregate sum properly paid by the State for the United States. The principal and interest so paid constitute a debt from the United States to the State. It is as if the United States had itself borrowed the money through the agency of the State.”

The court, in this case, also allowed interest on the money borrowed by the State from the commissioners of the canal fund which had been disallowed by the Court of Claims on the ground that the transaction was entirely between the different departments of the same government, which, in law, was the official act of the same political power; but the Supreme Court, treating it as a trust fund, held that the State should have invested the fund in securities for the benefit of the canal fund, and having diverted the fund to the uses of the United States in equipping troops, the State had therebjr deprived itself of the interest which might otherwise have been realized for the benefit of the canal fund, and for this reason the Supreme Court differed with the Court of Claims and allowed interest, charging against the fund, however, interest which the State had earned on a part of the fund so obtained from the canal fund. The decision of the court in the case of the *State of Maine*(36 C. Cls., 531, 561) followed that decision and is in strict accord therewith.

But in the New York case it should be borne in mind that the principal sum upon which interest was allowed had theretofore been audited and paid by the Treasury Department as “ expenses properly incurred by said State,” and for that reason the expenses for which said principal sum had been *282incurred were not directly involved in that case, or, as was said by this court in the first paragraph of its opinion (26 C. Cls., 467, 489), “ The petition alleges that the defendants became indebted to the claimant, on the 1st day of July, 1862, for money laid out and expended to and for the use of defendants, at their request, in the sum of $3,131,188.02, and of this there has been paid the sum of $3,000,000, leaving a balance due the petitioner of $131,188.02,” which was the exact amount of the judgment in the case as modified by the Supreme Court. Hence that question is open, and until determined in the present case that the principal sum upon which interest is claimed was an expense “ properly incurred ” by the State, the New York case can have no application.

To hold that the questions involved were determined by the State, and therefore not subject to review, is to fly in the face of the statute under which the accounting officers have from the beginning exercised the right to examine into such expenditures and determine for themselves what costs, charges, and expenses has been properly incurred by each State, and to that end such costs, charges, and expenses are “ to be settled upon proper vouchers, to be filed and passed upon by the proper accounting officers of the Treasury,” as in said act provided. The duties thus to be performed', under the act and the rules prescribed by the Secretary of the Treasury, are of a quasi judicial character, as they are to determine whether the expenses for which claim for reimbursement is made were “properly incurred” and to settle the same upon vouchers to be passed upon by them.

If Congress had thought the action of the State in incurring the expenses was conclusive on the accounting officers and the courts they would have made an appropriation to pay the claim so reported to them by the Secretary of the Treasury under the act of March 3, 1899 *(supra),*instead of sending it back to him for further investigation or reference to the court.

Now, keeping in mind that the United States paid the troops of Nevada in 1863, 1864, 1865, and 1866 the full pay and allowances of regular officers and enlisted men in the United States Army, and presumably also any bounties that *283may have accrued to them, let us inquire as to the character of the expenditures upon which interest is claimed. The items of the claim set forth show that the principal payments niade by the State were for bounties to commanding officers to secure enlistments and for extra pay to volunteers, upon which sum so paid interest is claimed from May 3, 1867, at rates varying, for different periods, from 5 to 15 per cent.

Of the other items mentioned in abstracts A, B, E, and F there was, as before stated, allowed under the act of June 27, 1882 *(supra),*by the Secretary of War, with the approval of the Treasury Department, the sum of $8,559.61, which was paid to the State April 10, 1888, leaving a balance due on abstracts B and E for various expenses and salary of the adjutant-general of said State of $2,192.08.

The allowance and payment, however, under said act of 1882, the claimant concedes was an inadvertence, as the act clearly applies to expenses incurred in repelling invasions and suppressing Indian hostilities, and was, as the claimant asserts, uniformly so interpreted by the accounting officers. But to the extent of the payment so made those items are out of the case, and whether any further payment shall be made thereon we remit to the accounting officers, suggesting that— in harmony with this opinion — whatever ruling has been applied under the acts of 1861 and 1862 in the settlement of like claims in favor of other States, not in conflict with the decision in the New York case, should be adhered to in any settlement made thereof with the claimant.

By the reimbursement act of July 8,1898 (30 Stat. L., 730), for expenses incurred by the governors of States and Territories in equipping troops for the Spanish war, it was expressly provided that any interest paid by any State or Territory on money borrowed or on sums paid out by them in equipping such troops should not be refunded or paid by the United States.

In view of the construction placed upon the act of 1861 by the Supreme Court in the New York case, supra, holding that interest paid by a State on money borrowed was an expense “ *properly*incurred,” the act of 1898 may well be considered, not as a limitation upon the payment of interest *284on the principal sum expended under said act of 1861, but as in some measure showing the intention of Congress as to the character of expenditures upon which interest should be allowed.

The rules set out for the settlement of claims under the acts clearly indicate the character of claims which will be considered and those which will not be, and as well the method of the settlement of such claims by the accounting officers. And by rule 8 it is expressly provided that “ bounties or donations to men or their families to induce men to volunteer will not be'recognized,” doubtless for the reason, as therein stated, that “ such bounties as majr be authorized by laAv will be paid by the United States directly to the men authorized to receive them.” Thus we have not only a prohibition against the reimbursement of expenses for bounties or donations to induce enlistment, but we have the reason for it, and the reason itself negatives reimbursement for any such expense through the agency of the State. To overthrow the construction thus given to the act, which has been adhered to for nearly fifty years, would in effect be overruling the Supreme Court, in many cases holding that the contemporaneous construction of an act by an executive officer charged with its execution is entitled to great weight and should not be overthrown except for cogent reasons. *(United States*v. Tanner, 147 U. S., 661; *United States*v. Finnell, 185 ibid., 236; *Penoyer*v. McConnaughy, 140 U. S., 1.)

This view is not in conflict with the decision in the *New Yorh*case, nor is the decision in that case in conflict with the rules so prescribed for the adjustment of such claims. The difficulty grew out of a too narrow application of the rules by the accounting officers soon after the war in not allowing interest on a principal sum found by them to have been properly incurred. The act promised reimbursement to the State for expenses properly incurred, and that, under the act as well as the rules, carried with it interest as a necessary part of the outlay.

This regulation was not only justified by the act of 1861, but was in harmony with section 9 of the act- of August 3, 1861 (12 Stat. L., 288), whereby Congress abolished the *285three months’ extra pay allowed by the act. of July 5, 1888, for reenlistments, as well as the bounty granted by the third section of the act of June 17, 1850 (9 Stat. L., 438), for enlistments at remote and distant stations and the premium paid for bringing accepted recruits to the rendezvous, and in lieu thereof enacted laws, too well known to cite, providing for bounties to encourage enlistments; but such bounties were paid by the United States directly to those entitled thereto and not through the medium or agency of the States under the reimbursement acts of 1861 and 1862.

Now, recurring to the claim in this case, men may be induced to volunteer by the promise of extra pay, as well as by the payment of direct bounties. And surely extra pay would fall under the head of bounty or donation to induce such enlistment. In other words, it is something additional to the regular pay and allowances authorized by Congress to officers and enlisted men in the army, and bounties to enlisted men, and, therefore, not an expense “properly incurred.”

That laws were enacted by the State at the instance of the officer commanding the military department of the Pacific to provide funds with which to meet the expense of volunteers was quite natural and commendable under the conditions existing there both to the officer and the legislature, and may give rise to some equity in favor of the claim; but that can have no legal force in the construction of the act of 1861. Equity is “the correction of that wherein the law by reason of its universality is deficient; ” but where there is a law equity must follow, and hence we are called upon to determine, not the equities of the claim, but the controverted questions of law.

It results that in respect to such bounties and donations the interpretation placed upon the acts of 1861 and 1862 by the Secretary of the Treasury — -now so long adhered to— must be upheld. Doubtless many, if not all, of the other Northern States offered bounties, donations, or extra pay to induce their citizens to enlist to fill up their respective quotas, called for from time to time by the President, but none of them, we are advised, have filed any such claim for *286reimbursement, and even the present claim was not filed until after the act of June 27, 1882 *(supra).*

As to the interest claimed on $46,950.12, there is nothing in the record from which the court can determine the character of the expenses for which said principal sum was incurred, though from the claimant’s brief we infer that in some way it was incurred by the Territory of Nevada, but whether to pay expenses properly incurred or for bounties or otherwise-does not apppeaf.

If, however, said principal sum upon which interest is claimed has heretofore been allowed and paid by the accounting officers as an expense “properly incurred,” then, under the decision in the New York case, the State is entitled to interest thereon, which interest, when paid, “ became a principal sum, as between the State and the United States; that is, became a part of the aggregate sum properly paid by the State for the United States.”

The question as to the rate of interest was not involved in that case, but, as the State was compelled to borrow money, the court said: “ It could not have borrowed money, any more than the General Government could have borrowed money, without stipulating to pay such interest as was customary in the commercial world.” From that statement we may conclude that the court at the time had in mind the payment of such rate of “interest as was customary in the commercial world.” What that rate was is more familiar to the accounting officers than to the court, and as there is no evidence in the case upon which the court could base an opinion, other than the condition historically known to exist on the Pacific coast during the civil war and the rate paid by the United States, the court remits the question to the accounting officers, who, if any interest should be allowed on said sum of $46,750.12, can follow the New York case in applying the rates then customary in the commercial world.

It follows that the motion to refer the case to the auditor to state the account is overruled, and the case is disposed of on the merits for the guidance of the Treasury Department.

This opinion will be certified to the accounting officers for their guidance and action.