#### John Frank Pargoud *v.*The United States.

*Motion for Appeal.*

*In a case under the “Abandoned or captured properly act,” the court decides against the claimant and dismisses his petition. Sé then, files his petition for an appeal, and moves for the allowance required by the rules of the Supreme Court. ■ ■*

In oases arising under tlie *“Abandoned or captured property aet,”*(12 Stat. L., p. 820,) tlie claimant lias no appeal to tlie Supreme Court.

Mr. *T. J. Durant*for the claimant:

Mr. *B. 8. Hale,*special counsel of the Treasury, for the defendants.

*350Loring, J.,

delivered tlie opinion of tlie court:

John Frank Pargoud was a claimant here under the act of 12th March, 1863, for the net proceeds of eighty-five bales of cotton, alleged to have been taken from his possession in the summer of 1865 by the United States. His petition stated that he had participated in the guilt of the rebellion, but that in January, I860, he had been pardoned by the President and had complied with the formalities required by the proclamation of amnesty, of May 25, 1865.

A motion to dismiss the petition was filed, and on the hearing it was ordered that the petition be dismissed. A motion for an appeal was then made and argued, to which the special counsel for the United States objected, that it was without right; and the question is, whether there is an appeal to the Supreme Court from judgments of this court in cases arising under the act of 12th March, 1863.

The fifth section of the act of 12th March, 1863, submits the cases arising under it to the Court of Claims, to be decided “ *on proof to the satisfaction of said court.''*This peculiar phrase is familiar to our legislation, and from early times its precise signification has been fixed by the usage of the departments and by repeated decisions of the Supreme Court. And it has uniformly been held to describe an exclusive and final jurisdiction from which there was no appeal.

On the 28th of August, 1819, Attorney Generifl Wirt, in an oficial opinion rendered to the Secretary of the Treasury, thus states the question submitted to him: “ Whether the pre-emption claims can be ascertained and decided upon by any other agency than that of the registers and receivers of the land districts in which they are situate?” and the Attorney General answers thus: “ I think not. The power is expressly given to them without any power of revision elsewhere. The language of the law is, that ‘in every case where it shall appear *to the satisfaction of the register and receiver of public moneys of the Land Office*that any person who has delivered his claim of notice is entitled, according to the provisions of this act, to a preference, such person so entitled shall have a right to enter the same on his producing a receipt from the receiver,’ &c.; 1 vol. Op., 291.” And the Attorney General italicizes the words, “ to tlie satis*351faction of the register and receiver,” &c., as indicating tbe grounds of his conclusion.

The act of 29 th May, 1830, empowered the Commissioner of the General Land Office to prescribe rules for the register and receiver.' And on a like question, arising under that act, Attorney General Butler, in an official opinion rendered to the Secretary of the Treasury, April 21, 1836, 3 vol. Op. 93, said as follows : *“*In an opinion bearing date the 28th of August, 181.9, the Attorney General decided that under the pre-emption law of the 5th of February, 1813, the power of ascertaining and deciding on the facts which entitle a party to the right of preemption was exclusively vested in the' register and receiver of the land district in which the lands were situated, without any power of revision elsewhere. The language of the law on which this decision was made is very nearly the same with that of the act of the 29th of May, 1830, on which your questions arise. The proof of settlement or improvement is in each case to be made to the satisfaction of the register and receiver; the only material difference is, that by the act of the 29th of May, 1830, such proof is to be mad*e*agreeably to the rules to be prescribed by the Commissioner of the General Land Office for that purpose.’ ” This, however, in my judgment does not vary the matter. The Commissioner of the General Land Office is to prescribe in advance such general rules in regard to the mode and nature of the proof to be made as he sháll think suitable; and those rulés are to be observed and conformed to by the register and receiver. But the proof adduced in conformity to such rules is in each case to be received, considered, and decided on, by the register and receiver. In weighing the evidence and in deciding on its efficiency, these officers act in a judicial capacity; if it proves to their satisfaction that the settlement and improvement required by law have been made, they must allow the entry; if it tails to satisfy them of those facts, they must disallow- it. The law has not authorized any other officer to reverse or revise their decision; nor can they be compelled to decide according to the dictates of any judgment but their o wn.”

And this view of the law was affirmed by the Supreme Court in the case of *Little v. The State of Arkansas,*(9 How., 314, 1849,) where the court say: “ The register and receiver were constituted by the act a tribunal to determine the rights of those who claimed pre-emption under it. From their decision no appeal *352was given. If, therefore, they acted within their powers as sanctioned by the Commissioner and within the law, and the decision cannot be impeached on the ground of fraud and unfairness, it must be considered final.” (See, also, *Wilcox*v. *Jackson,*13 P., 498.)

So the law was held that receivers and registers under the words, *“*on proof to their satisfaction,” had an exclusive jurisdiction until by statute July 4,1836, § 1, their .action was subjected to the supervision of the Commissioner. In *Barnard’s Heirs*v. *Ashley’s Heirs,*18 How., 43, 1855, the Supreme Court said: “ In cases arising under the pre-emption laws of 29th May, 1820, and 19th June, 1834, the power of ascertaining and deciding on the facts which entitled a party to the right of preemption was vested in the register and receiver of the land district in which the land was situated, from whose decision there was no direct appeal to a higher authority.” And the court then refer to the act of 1836, and say that it *“*modifies the powers of registers and receivers to the extent of the Commisioner’s action.”

The registers and receivers of the Land Office were officers of a department, and their official acts were in general subject, of course, to the revision and control of the head of the department. Yet it was held that they were removed from that revision and control as to matters which were to be found “ *on proof to their satisfaction,”*and made a tribunal of exclusive and final jurisdiction, from which there was no appeal.

So the words in question are used where from the nature of the tribunal there can be no appeal. As in the *Act March*3, 1817, (3 Stat. L., 399,) by which an insolvent debtor of the United States may be discharged from the debt by the President *“upon proof made to his satisfaction.”*And again, in the *Act*6 *June,*1798, (1 Stat. L., 561,) wh ereby an insolvent debtor may be.released from imprisonment by the Secretary of the Treásury *“onproof made to his satisfaction”*that the debtor has made no fraudulent conveyance and is unable to pay the debt.

So the like words when applied to the district courts have the same effect. Thus, under the naturalization acts, those courts were to be “ *satisfied”*as to the alien’s residence$ and his attachment to the principles of the Constitution, &c., are to be made to *“*appear to their satisfaction.” And in *Spratt*v. *353*Spratt,*(4 Peters, 393,) tbe judgment of tbe district courts on tbe matters specified was beld to be final.

So again,tbe *Aetl5 May,*1820, (3 Stat.L., 592,) “providingfor tbe better organization of tbe Treasury Department,” authorized tbe agent of tbe Treasury to issue a warrant of distress against a receiver of tbe public money, in default in accounting for, or paying over, money be bad received. And its 4th section provided that any person aggrieved by such warrant might apply to tbe district court for an injunction to stay proceedings on tbe warrant; and it authorized tbe judge to add damages to tbe amount of the warrant, if “ on dissolving tbe injunction it shall appear *to the satisfaction of said, judge*that tbe application for tbe injunction was for delay merely.”

Then tbe act provided for an appeal by tbe party aggrieved by tbe decision of tbe judge on these specified points, “ *either in refusing to issue the*injunction, or, *if granted,, on its*dissolution;” but it provided no appeal from tbe assessment of damages to be added to the amount of tbe warrant for tbe delay which was to be made to appear *"*to tbe satisfaction ” of tbe district judge. And an express specification in a statute of tbe powers of appeal excludes all others; or, as tbe rule is expressed by Justice Curtis : “ Tbe affirmative description of tbe appellate power of tbe Supreme Court contained in tbe judiciary act, implies a negative on tbe exercise of such appellate power as is not comprehended within it.” Curtis’s Digest, 273, citing *Durosseau*v. *The United States,*(6 Cr., 307,) so that the statute of 15th May, 1820, withholds an appeal from tbe matter to be shown “ *to the satisf action”*of tbe district judge, although providing for it on other matters.

It is obvious that as to receivers and registers of tbe Land Office, tbe President and tbe Secretary of tbe Treasury, there was no general statute giving in express terms an^appeal from their decisions; but as to tbe district court there was for tbe act of 1863 (2 Stat. L., 244,) provided for appeals to tbe circuit courts, from final judgments and decrees of tbe district courts, as tbe act of 3d March, 1863, provided for appeals to tbe Supreme Court from tbe final judgments ánd déCrees of' this court.

Tbe 5th section of tbe act of 12th March, 1863, by referring cases under it to this court, submitted them tó tbe usual modes *354of proceeding here and to tbe powers with which this court is invested. But we think, on the authorities cited, that in the further provision that the cases should be decided, “ *on proof to the satisfaction of said court f*it used that peculiar phrase, as from early times it has been uniformly used in Congressional enactments, to create a' final and exclusive jurisdiction from which there was no appeal. And if the phrase used has that significance, then there is no room for argument or inference 'or question of jurisdiction or powers, for Congress has, *in express*terms, provided that the decisions here should be final.

And such is the effect of the phrase when its words are taken in their ordinary meaning; for, as was said in the opinion read by the Chief Justice in the case of *Celestine Eslava,*no other tribunal could judge what proof was sufficient to satisfy the minds and consciences of this. And we now affirm the decision made in the case of *Gelestine Hslma,*and we decide as a conclusion of law—

That claimants, under the áct of 12th March, 1863, have no right of appeal from the judgments of this court.

This case involves the effect of pardon and amnesty as well as the right of appeal under the act j and we are glad to *know*that our decision may be revised in the Supreme Court, and its error, if found, corrected there.

The motion for an appeal is overruled.

Nott, J.,

dissenting:

This is the first time that the question of a party’s right to appeal to the Supreme Court from a decree in a case under the *"Abandoned or captured property act”*has been argued before this court, though the question was once discussed before two of the judges sitting during the vacation. The assumption seems to have prevailed that befcause these decrees are for the restitution of the proceeds of property whereof the claimants are the equitable owners, that, therefore, they are not judgments; and this assumption had hardly been disturbed until Congress chanced to call the decisions of this court by their right name in a provision designed to secure to the government the right of appeal in all possible cases. *Act 25th*June, 1868, (15 Stat. L., c. 71.) I do not ascribe much importance to this use of a term by Congress, nor think the character of the decisions would *355be changed by alluding to them as judgments, or decrees, or orders, or awards, or findings. It is the substance and not the name that must give to them their legal character. •

What is the nature of these abandoned or captured property decrees? There is a controversy; it is presented on formal pleadings; it is determined by competent evidence taken under and tested by the well-settled rules of the law of .evidence ; the decree is rendered by a judicial tribunal; and it is final, and conclusive upon the parties. If these ingredients do not constitute a “judgment,” it is pretty difficult to define what a judg- . ment is.

Assuming that the decree in'this case is a judgment, I think the appeal moved, for by the claimant should be allowed for these reasons:

1. The act to establish a Court of Claims, *(Act 2tíh February,*1865, 10 Stat. L., p. 612,) invests this court with jurisdiction “ *to hear and, determine all claims founded upon any” "contract, express or*imipliedP. If the act stopped there I should say th*e Abandoned or captured property*act” conferred a new jurisdiction ; for actions under it are not *ex*contractu, but in the nature of suits in equity to enforce a trust. But the statute does go •further. It provides that this court shall also “hear and determine all claims *founded upon any lato of*Congress.” The act does not mean any “law of Congress” theretofore enacted,-any more than it means any “ contract express or implied,” theretofore made; for both stand in one clause of one sentence, and are to be governed and construed in one way.

This court, then, having jurisdiction of “ *all claims founded iipon any law of*Congress,” Congress conferred by law upon certain parties these abandoned and captured property claims. The. object of the statute was not to enlarge the jurisdiction of this court, but to provide for the care and custody of abandoned and captured property, and the proceeds thereof. This court is named but once in the act, then only incidentally, and is not the subject of a single sentence. The provision supposed to have created a new jurisdiction is only an insignificant part of a single section; and the subject of the section, as of the sentence, is the owner of the property, the claimant, the person on whom the claim and right of action are conferred. There is no new power vested in the court, no process prescribed, no remedy" indicated, no limitations imposed. The statute speaks not *356to tbe court blit to tbe claimant, and simply says tbat be may come into tbe only tribunal having jurisdiction of actions against tbe United States, and bring bis action there to enforce tbe new claim given by and founded upon this law of Congress.

Tbe process, tbe practice, tbe remedy, all jurisdictional conditions, this statute leaves to previous legislation. If tbe Court of Claims bad not been named in it once, but tbe statute instead bad said “ any person claiming to have been tbe owner of any such abandoned or captured property may bring bis action for tbe net proceeds in any court having jurisdiction of claims against tbe United States,” it would have said no less than it says now ; and these claimants would have proceeded in just tbe same way tbat they now do, and would have bad just tbe same relief.

If tbe jurisdiction of this court rests alone on tbe *“Abandoned or captured property act,”*bow is tbe suit to be commenced*? By what authority can tbe court issue process ? What is tbe .remedy 1 By what requirement does tbe Assistant Attorney General appear and defend ? All tbat tbe statute says is tbat tbe owner shall “ *prefer Ms claim”*and “ *receive the residue”*“ *on proof, to the satisfaction of said court.” If*these few words create a new, distinct, and indexiendent jurisdiction not grafted ■upon nor limited by tbe statute which confers and restrains tbe general jurisdiction of tbe court, then tbe proceedings under them should have been a mere *ex parte*investigation to establish *aprima facie*right of recovery in each case, standing in tbe . place of the like investigation given to other claims by tbe accounting officers of tbe Treasury. Tbe statute alone neither authorizes nor requires more. To “ prefer a claim” does not mean to bring an action ; to “receive tbe residue” does not mean to recover a judgment; “proof to tbe satisfaction of said court” by tbe claimant, does not import litigation or counter testimony on tbe part of tbe defendants. And, therefore, I think tbat Congress could never have committed to this court a jurisdiction so important by tbe few and careless words of this statute; but tbat, on tbe contrary, tbe power and jurisdiction of this court were previously conferred by tbe acts 24th February, 1855, and 3d March, 1863, and by those statutes properly prescribed, limited, and defined.

But further than this : Tbe Court of Claims, is a court created by statute, and it has repeatedly been held tbat its jurisdiction *357must be expressly given. Tke first act conferring power upon tke court uses clear and unmistakable language: “ *The said court shall hear and determine*all claims founded upon any law of Congress,” &c., *(Act*24th *February,*1855, 10 Stat. L., p. 612.) The second is like unto *it: "The said court, in addition to the jurisdiction now conferred by law,'shall also have jurisdiction of all*set-offs,” &c., *(Act 3d March,*1863, 12 Stat. L., p. 765, § 3.) The third is equally plain and decisive: “ The *Court of Claims shall have jurisdiction*toliear and determine tke claim of any paymaster,” &c., *(Act 9th May,*1866, 14 Stat. L., p. 44.) But the *"Abandoned or captured property act*” contains not one word of power, of jurisdiction, nor relating to the judicial remedy.

Since this discussion began tke question kas been narrowed down to tke effect of tke words in tke act: *"on proof to the satisfaction of said court?*It is conceded tkat tke power, tke jurisdiction, and tke remedy must be derived from tke acts creating and reconstituting tke court; but it is claimed that these words have a technical meaning exclusive of a right of appeal.

Tke reasoning, I think,presents this dilemma: 1st, tke words must, by implication, annul tke express words of tke previous statute, *"that either party may appeal to the Supreme Court of the United States from am/y final judgment or decree which may hereafter be rendered in any case-,”*or, 2d, they must strip tke proceedings of tkeir judicial character, and reduce them down to tke ministerial investigation 6f an officer sitting to make awards in kis discretion on informal proofs. In other words, it would invest us with a general judicial power to hear tke case, and an exclusive discretionary power to determine it. I do not think tkat this can beso. To me it seems clear tkat we must accept all of tke powers and limitations of tke previous statutes or none. If tke decision is a final judgment or decree attained under tke previous act of 3d March, 1863, then “ *either party may appeal to the Supreme Court,”*and express words or necessary implication alone can take away tke right.

Tke cases which have appeared from time to time in tke Supreme Court, wherein Congress have invested some officer with tke *quasi*judicial discretion of making an awardin some contested matter, *"*upon proofs to kis satisfaction,” or other equivalent words, do not invest this phrase with any peculiar significance, but rest upon tke reason tkat when a special jurisdiction kas been provided by statute tke right of invoking tke supervision *358of tbe courts of law is not implied. In tlie words of the Supreme Court in one of these cases, “If a new jurisdiction be conferred,' and a special mode be provided by which, it shall be exercised, it is clear that the remedy cannot be extended beyond the provisions of the act.” *United States*v. *Nourse,*(6 Peters R., pp. 470, 493.) The difference between those cases and these, is precisely this — that there, the statutes provided no right of appeal, but- here, they do.

As some doubt has been felt as to the meaning of the term “ claim” in this “ *Abandoned and cqpturedproperty act,”*I observe that claims against the United States consist of two classes : 1st, those coupled with a right of action, and upon which a ' party may sue in this court: 2d, those not coupled with a right of action, and for which the party has no remedy save what the Supreme Court has termed “ the right to importune Congress.” *(Gordon’s Case,post.)*

There are claims recognized by the law which are not causes of action, as a “claim against the government” “ growing- out of or dependent on any treaty stipulation,” *(Act M March,*1863;) or a “claim against the United States growing out of the . destruction or appropriation of or damage to property by the army or navy” during the late rebellion, *(Act 4dh July,*1864;) but there are no causes of action against the government which are not included in the term “ claims” by these various statutes. In these cotton cases, the “ claim ” was created and given by the general provision of the act; and the particular provision naming the tribunal where it might be prosecuted, coupled it with a right of action; and thus the claim is doubly founded upon this “ law of Congress.”

2. As to the first section of the recent act to provide for appeals from the Court of Claims, it does not affect the question. The section is general, and does not refer to these decrees by name. If they were not “final judgments of the said Court of Claims,” the statute does not refer to them even by implication. If they were judgments, the act reconstituting this court already provided for them. The legislative purpose of the section was to secure to the United States a general right of appeal not dependent on the special statutes, and private acts, and joint resolutions that from time to time might be passed.

3. Apart from this question of jurisdiction I think the appeal should be allowed under the decision of the Supreme Court in *359tbe case of *Theodore Adams*v. *The United States,*(6 Wal. R., p. 101.)

It is there laid down that this court has no judicial discretion to grant or withhold an appeal. From the nature of things an inferior court cannot be invested with a judicial discretion as to whether its acts may or may not be reviewed by the appellate court, unless specially intrusted with that discretion by law. Certainly the appellate court cannot commit to the inferior that discretion.

When the rule of the Supreme Court regulating appeals from this court speaks of *“ an order of allowance of appeal by the Court of*Claims” it does not mean an allowance of the *right of appeal,*but an allowance of the *application*by the party. It is an allowance of *th& fact,*not the right. The allowance is not made as between the appellant and the appellate court, but as between this court and its own records. It settles nothing but that the party has appealed, and that the decree, judgment,, or order from which he appeals, exists. The *"*order of allowance” is in one sense an admission that a judgment has been 'Rendered; in another sense, a certificate that an appeal has been taken; in a third sense, an authority to the clerk of this court to make up the record and transmit it to. the Supreme Court. Whenever, after judgment, it is asked for, it should be granted; the Supreme Court is able to guard its own jurisdiction.