#### JAMES FRAZER v. THE DISTRICT OF COLUMBIA.

No. 216.

April 16, 1883.

An act of tlie legislative assembly of the District *of*Columbia, of June 20, 1872, eli. 34, authorized the sinking-fund commissioners, after examination and approval by them and by the auditor and comptroller, to pay claims against the city of Washington created by the late city corporation. /

The claimant had a demand for repayment of money paid by him for land purchased at a tax sale, the title of which he alleged proved defective, and for subsequent taxes paid thereon. He had another claim assigned to him, for work done by his assignor under contract with the old Washington corporation for grading a street.

Each of these claims had been approved by the auditor and comptroller of the District, but had not been examined and approved by the sinking fund commissioners, and had not been paid.

Held: ■

I.Certificates of the auditor and comptroller of the District, which the legislative act of June 20, 1872, ch. 34, required to be examined and approved by the sinking-fund commissioners before payment, are not *“*certificates issued by the auditor and comptroller of the Dis- > trict of Columbia” within the meaning of the District Claims Act, of which jurisdiction is given to this court by that act. (Supplement to Rev. Stat., 562.

II.Certificates by a collector of taxes and a city surveyor after they go out of office of matters occurring while they held office arc not admissible in evidence.

III.This court has no jurisdiction, under the District Claims Act, of claims against the old corporation of Washington.

This is an action of contract against the District of Columbia, -the facts of which are fully set forth in the following findings by the court:

FIRST CLAIM.

I. The claimant bought at a tax sale of the former corporation of Washington, on May 9, 1865, lot 18 of square 79 in the city of Washington, assessed as the property of D. G-. Major, and received a deed therefor June 20,1867.

II. In May, 1873, the claimant applied to the District of Columbia for a refund of the purchase money and taxes paid by him on said lot and interest thereon, alleging that the sale was erroneous and void.

*375He presented tbe following bill ofiterhs:

Purchase-money May 9, 1865.$20 85

Recording deed... 2 75

•Special tax for laying waste-pipe February 8, 1871 . 67 99

Constructing sewer February 6, 1871. 88 89

General tax for 1870, November 16, 1870.. 24 21

Interest tbereon.

This bill was accompanied by the following certificate:

Collector’s Office, District of Columria,

*Washington, January*10i7¡., 1872.

I hereby certify that the sale for taxes May 9th, 1865, of all of lot number 18 in square No. 79, in the name of Daniel G. Major, for the general taxes of the year 1864 was erroneous, from the fact that part of said lot Vas then owned by and assessed on the tax boohs for 1864 in the name of Margaret Meany, on which she xiaid the said taxes Sept. 23d, 1864.

I therefore declare th at the purchaser at said sale or his assignee is entitled to be refunded the amount of the purchase money paid at said sale, with all expenses incurred thereby, and six per cent, interest per annum to date, amounting to thirty-eight *-pfo*dollars, payable on the execution, by said party, of a quit-claim deed of said lot, to the District of Columbia as the successor of the corporation of Washington, out of the First Ward fund of the said corporation of Washington.

Purchase money.$20 85

Interest. 8 34

Corp. deed, recording & stamp. 4 85

Interest. 1 24

Quit-claim deed & recording. 2 75

W. H. Slater,

*Collector.*

This claim was iudorsed as follows:

Auditor’s Office, D. C., *Nov.*26, 1873.

Approved for the sum of two hundred forty-one and -ftV dollars, payable out of the sinking fund.

Z. Richards,

*Auditor D. C.*

Geo. C. Baker,

*Comptroller.*

The claim so indorsed was submitted to the commissioners of the sinking fund, but was never allowed by them.

It does not appear that the claimant’s title or possession of the said premises has been disturbed in any manner.

*376SECOND CLAIM.

III. On August 14,1869, a written agreement was executed between Cornelius Clark and S. J. Bowen, mayor of the city of Washington, as follows:

*Memorandum of agreement made this 14th day of August,*1869, *by and between Cornelius Clark ‡ Co. and the corporation of Washington.*

The said Cornelius Clark & Co. hereby agree to grade and gravel P street north from Fifteen (15) street west to the western boundary, under an act approved February 20th, 1869, the work to be commenced within five (5)-days and to be completed within ninety days from this date, to the satisfaction of the commissioner of the First ward and the assistant commissioners appointed by the mayor to superintend the work; and upon the failure of the said Cornelius Clark & Co. to commence the said work or to complete it within the stipulated time, and in the manner required by this agreement, full power and authority is hereby given to the mayor of Washington to employ some other person or persons to execute the work and to furnish the materials herein agreed to be executed and furnished or any part thereof;' in which event the said Cornelius Clark & Co. hereby relinquishes and gives up all claim for payment for any work which may have been executed and for all materials which may have been furnished under this agreement up to the time of such failure; and also hereby holds-responsible to-the said corporation for any costs, damages, or increased expense which may he incurred by said corporation in consequence of such failure.

And upon the faithful execution and completion of said work as required by this agreement the said corporation hereby agrees to pay to the said Cornelius Clark & Co. seventeen cents for grading per cubic yard and sixteen cents for graveling per square yard. Thegravelto he of good quality,, free from stone of improper size, and to be nine! (9) inches deep at the center of the street, and tapering to four (4) inches deep at the gutter line, after the same has been properly rolled; all surplus earth, stone, sand, &c., to be deposited where, the commissioner of the 1st ward may direct. Only one price for grading to be paid, either cutting or filling, that which measures most, which shall he in full of all claim and demand for or on account of said work, it being expressly understood that no allowance for extra work or materials is to be allowed unless such extra work or materials be authorized by an indorsement on thiB agreement.

And the said Cornelius Clark & Co;, for himself, his heirs, executors, and administrators, hereby further covenants that he will at jail times, and from time to time, keep the said work, and every part thereof, well and sufficiently so guarded and protected that no accident shall happen by reason of any negligence therein to any person or vehicle passing along or crossing the said street wherein the said work is being done; and if at any time-during the progress of said work and before the completion of the same, by reason of the negligence of the said Cornelius Clark & Co., or any person or persons employed by him, any accidental injury shall happen to any person or persons, animal or animals, vehi cle or vehicles, whereby any action for dam*377ages shall arise or accrue to any person or persons against the said corporation, he, the said Cornelius Clark & Co., his heirs, executors, and administrators, shall and will, from time to time, as the said case shall arise, well and truly indemnify and save harmless the said corporation from all loss, cost, and damage hy reason thereof and hy reason of every such accident.

Cornelius Clark, [seal.]

S. J. Bowen, *Mayor,*[seal.]

Witness:.

Henry Himber. [seal. ]

For work done under this contract Cornelius Clark was paid as follows:

November 17,1869, hy the city of Washington. $2,000 00

January 3,1870, hy the city of Washington. 4,342 53

October 7,1871, hy the District of Columbia. 600 00

November 9,1871, hy the District of Columbia. 1,003 20

7,945 73

IV. May 8, 1873, Cornelius Clark presented to the auditor and comptroller of the District of Columbia a further claim for work under the contract, based upon the following affidavit of P. H. Donegan, who had been, but was not at the time of measurement, surveyor for the District:

Washington, D. C., *June 15th,*1872.

This is to certify that I have measured the grading and graveling done hy Cornelius Clark & Co. on P st. NW., between 22d st. and Rock Creek, and find that the following quantities have been executed, viz :

Grading 6,844 cubic yards, at 17 cts.$1, 163 48

Graveling 933 square yards, at 16 cts. 149 28

1,312 76

P. H. Donegan, *Surveyor.*

Sworn and subscribed before me this 2d day of May, A. D. 1873.

[seat,.] Sam’l C. Mills, *J. P.*

This additional claim was indorsed as follows:

Auditor’s Office, D. C., *May*8, 1873. Approved for the sum of one thousand three hündred and twelve *&*dollars,, payable out of the sinking fund, act leg. assem. June 20, 1872.

Z. Richards,

*Auditor I). C.*

Geo. E. Baker, *Comptroller.*

The claim was then presented to the commissioners of the* sinking fund, but was never approved or paid by them.

*378V. The claim was afterwards assigned to claimant, as follows :

Washington, D. C., *Aug. 25th,*1876.

For value received I hereby assign tlie within claim to James Fraser.

CoRnelius Clark.

. VI. September 15,1879, by authority of the act of Congress of June 20,1878, there was allowed and paid by the United States to the workmen of said Clark, out of the funds of the District of Columbia, for work done under said contract, the sum of $1,668.46, which was alleged to be due to them from said Clark and unpaid.

*Mr. William Birney*for the claimant:

1. The Court of Claims has jurisdiction, the claims being outstanding claims against the District of Columbia, based on certificates issued by the auditor and comptroller of said District. *(Act of June*16,1880, Suppl. Rev. Stat., 562; 15 C. Cls. R., VII; 21 Stat. L., 284.)

2. A person paying money to a municipal corporation in respect of property illegally sold for taxes to such person by such corporation, is entitled to have said payments refunded to him, when, such sale being declared erroneous, he is deprived of the property.

3. The measurement of a contractor’s work by the surveyor at the time when the work was done, but whose term had expired, said measurement being sanctioned by the District authorities, is sufficient to show defendant’s acceptance of the work done under the contract. *(Dale's Case,*14 C. Cls. R., 514.)

4. A certificate for a specific sum as due, indorsed upon a claim for work done for the District of Columbia, and signed by the auditor and by the comptroller of said District, is equivalent to a mandate upon the District treasury for payment of that sum; and in the absence of evidence to the contrary, it is proof that the sum was due by the District.

5. The fact that certificates issued by the auditor and comptroller are made payable out of the sinking fund, and are presented for payment to the sinking-fund commissioners, and are by them unacted upon, does not prevent them from being outstanding claims against the District, within the jurisdiction of the Court of Claims, under the Act of July 16, 1880.

*379' *Mr. John 0. Fay*(with whom was *Mr. Thomas Simons,*Assist-, ant Attorney-General) for the defendant:

1. The papers on which the two claims in the petition- are founded are not certificates issued by the auditor and comptroller of the District within the terms of the act giving this court jurisdiction. (Suppl. to Bev. Stat. 562 ; 21 Stat. L. 284; 15 C. Cls. B., TIL) The certificates there described manifestly relate to instruments in the nature of complete obligations, while the papers in issue could create no obligation until certain further proceedings were taken which it is manifest have not been taken. It is further apparent by comparison of the *Act of June*20,1874 (18 Stat. L., 116) with that of June 16, 1880, that the certificates in question described in the latter are the same as .those described in similar terms in the former, and the reports of the Board of Audit show the nature and form of the certificates.

2. There is no merit in the claims. The alleged error in tax sale is not proven by competent evidence, and if it were otherwise the payments of expenses, taxes, and assessments were voluntary. *Oaveat emptor*applies (10 Allen, 49).

3. As to the P street work, Clark was not only fully paid, but the United States actually paid his debts to his workmen to a considerable extent.

OPINION.

Scofield, J.,

delivered the opinion of the court:

Two distinct and disconnected claims against the former corporation of the city of Washington are embraced in this suit.

The first of these claims originated as follows: In 1865 a certain lot .was sold by the city.for the unpaid taxes of 1864. The claimant bid it off, paid the purchase money, received his deed, took possession, and down to 1872 paid all taxes assessed thereon. About that time he discovered, or thought he discovered, that part of the taxes for 1864 had been paid before the sale. Thereupon he procured from W. H. Slater, the tax collector of 1872, a certificate to the effect that part of the tax of 1864 had been paid, and that the sale was therefore erroneous. This certificate, together with a bill for purchase money, taxes, costs, and interest, amounting to $241.81, he laid be*380fore tbe accounting officers of the District and asked for a refund. Tbe bill was approved by tbe auditor and comptroller, and was then laid before tbe commissioners of tbe sinking fund, but they took no action upon it.

Tbe second claim is based upon a contract made August 14, 1869, by the city of Washington and Cornelius Clark for tbe grading of P street. Tbe claimant alleges that there was an unpaid balance of $1,312.72 which bad been assigned by Clark to himself. In support of this claim a certificate of measurement made and sworn to by P. H. Donegan, who bad been surveyor for tbe city when tbe work was done, but at tbe time of certifying held no official position, was, with tbe bill, laid before tbe accounting officers of tbe District. Like tbe first claim, it was approved by tbe auditor and comptroller, but not acted upon by the commissioners of tbe sinking fund.

• Tbe mode of authentication and payment of claims against tbe former corporation of tbe city of Washington is set forth in tbe act of tbe legislative assembly of June 20,1872, chapter 34, and is as follows: *

> That the commissioners of the sinking fund of the District of Columbia are hereby authorized, subject to the provisions hereinafter contained, to settle, after examination and approval by them and the auditor and comptroller of the District, such contracts and obligations of the city of Washington as may have been entered into and created by, or claims that may exist against, the late corporation of Washington, and not included in the report of the auditing commission or provided for by the act of Congress-approved May eighth, eighteen hundred and seventy-two, including the seven and three-tenths certificates of indebtedness issued under act of Congress and ordinances of the said city. * * * [Provisions for issuing bonds to pay such liabilities, &c. ] And provided further, That no claim shall be paid unless it shall first have been examined and approved by the auditor and comptroller of the District, and then submitted by saicl officers, with all the papers connected therewith, to the commissioners of the sinking fund, and also approved by them; and no claim shall be audited or paid by virtue of this act unless presented within nine months from the date of its passage.

It will be seen that by tbe provision of this law tbe approval of tbe auditor, comptroller, and tbe commissioners of tbe sinking fund must precede payment. As these claims were not approved by tbe commissioners, the prior approval of tbe auditor and comptroller bad no legal significance. They were left as they were before, to wit, outstanding, unautbenticated claims against the city of Washington. Having failed to se*381cure the claims before the commissioners of the sinking fund, the claimant might at that time have tested his rights in the courts of the District. It does not appear that he availed him- ' self of this privilege.

As the certificates of Slater and Donegan, however proper for the consideration of the accounting officers, are not evidence in a court of law, and as the approval by the auditor and comptroller unsupported by the approval' of the commissioners of the sinking fund cannot be received even as *prima facie*evidence, both claims are left by the findings without any supporting proof.

This ruling not only leaves the claims without proof, but, by defining their character as ^unliquidated claims against the city of Washington, deprives the court of all jurisdiction over them. For it is not alleged that we have jurisdiction of claims against the city of Washington as such. It was only on the supposition that the claims were converted into “ certificates issued by the auditor and comptroller of the District of Columbia,” within the meaning of the *Act of June*16, 1880, ch. 243 (21 Stat. L., 284, and Suppl. Eev. Stat., 562), that jurisdiction was taken. But as the approval of the claims by these officers without the concurring approval of the commissioners of the sinking fund gave them no additional validity and authorized no payment, they cannot be considered the certificates described in the jurisdictional act. That act necessarily refers to certificates given for claims the validity of which might be lawfully examined, passed upon, and authenticated by the auditor and comptroller alone. Such certificates are by the intendment of the act *prima facie*evidence of the facts therein stated, and, unimpeached for fraud or mistake, conclusive against the defendant. But the “approvals” of the claims in suit are without any legal force except to confer upon the commissioners of the sinking fund jurisdiction to examine, approve, and settle them if they saw fit. Of themselves they gave no validity, created no liability, and authorized no payment.

The petition is dismissed.