precluded from obtaining a revision of such settlement as to any items upon which payment is accepted; but nothing in this act shall prevent an Auditor from suspending items in an account in order to obtain further evidence or explanations necessary to their settlement. When suspended items are finally settled, a revision may be had as in the case of the original settlement. Action upon any account or business shall not be delayed awaiting applications for revision:

That the application for pay and allowances upon said amendment of record is a new claim, coming within the jurisdiction of the Auditor for the War Department, and is not to be regarded as an appeal under section 8, act of July 31, 1894, or an application for a rehearing. (III Comp. Dec., 144; IV id., 303, 332, 471, 622, 723.)

Under the act of July 31, 1894, an auditor has no jurisdiction to review his own final action in the settlement of an account, but such settlement can be reopened only on a revision thereof by the Comptroller of the Treasury within a year, as provided in section 8 of said act. (I Comp. Dec., 27. See, also, id., 31, 78, 87, 139, 199, 317, 381, 448, 500, 502; II Id., 4, 401, 510.)

Under section 8 of the act of July 31, 1894, appeals from disallowances by the auditors must be taken within a year from the date of the settlement. If taken after the expiration of a year, the Comptroller is without jurisdiction to entertain the appeal. (Id., 510.)

This paragraph expressly repeals section 1 of the act of March 30, 1868 (sec. 191, Rev. Stat.). The clause "shall be conclusive upon the Executive Departments of the Government," which formed a part of the repealed section, was enacted to settle a long-pending dispute between the accounting officers and the heads of departments as to their respective powers over claims and accounts. and has been interpreted to relate " only to matters of accounting in the Treas ury Department, and of ascertaining the balance in each particular account which shall be drawn from the Treasury. * * It makes conclusive upon

the executive branch of the Government only the 'balances' stated by the accounting officers and their decision thereon' for the purpose of determining for what amounts, if any, warrants may be drawn on the Treasury. It does not make such decisions conclusive upon the head of a department in the exercise of his discretion as to orders to be issued to his subordinates in such connections as the one now under consideration." (Billings v. U. S., 23 Ct. Cls., 166; McKee v. United States, 12 id., 504.) It was held in the case of Surgeon Billings (23 Ct. Cls., 166) that the War Department had authority to send a surgeon to the International Medical Congress at London at the expense of the Government, that being a military service which a surgeon could be required to render. In the case of Paymaster Smith (24 Ct. Cls., 209) it was held that the employment of experts before a court-martial was within the legal and proper discretion of the Secretary of War. In the case of the United States v. Jones (18 How., 92, 95) the court held "that the Secretary of the Navy represents the President and exercises his power on the subjects confided to his Department. He is responsible to the people and to the law for any abuse of the powers intrusted to him. His acts and decisions on subjects submitted to his jurisdiction and control by the Constitution and laws do not require the approval of any officer of any other department to make them valid and conclusive. The accounting officers of the Treasury have not the burden cast upon them of reviewing the judgments, correcting the supposed mistakes, or annulling the orders of the heads of departments." (See, also, U. S. v. McDaniel, 7 Pet., 1, 14; U. S. v. Eliason, 16 Pet., 291; Brown v. U. S., 113 U. S., 568, 571; Edwards v. Darby, 12 Wheat., 206; U. S. v. Pugh, 99 U. S., 265; Parkhurst v. U. S., 29 Ct. Cls.. 399.)

When the Government is estopped from further controverting a question adjudicated by a court of competent jurisdiction it is the duty of the accounting officers to follow the decision in subsequent settlements of the parties' accounts. The legislation of Congress and the decisions of the Supreme Court unmistakably indicate that judgments of this court, not appealed from, are obligatory upon the Government as upon the claimant, and are intended to be guides and precedents for the Executive Departments. (Meigs v. U. S., 20 Ct. Cls., 181; U. S. v. O'Grady, 22 Wall., 641; Wis. Cent. R. R. Co. v. U. S., 164 U. S., 190.)

Provided, That the Secretary of the Treasury shall make regulations fixing the time which shall expire before a warrant is issued in payment of an account certified as provided in sections seven and eight of this act. Sec. 8, id.

209. Decisions construing statutes to be revised by Comptroller.All decisions by Auditors making an original construction or modifying an existing construction of statutes shall be forthwith reported to the Comptroller of the Treasury, and items in any account affected by such decisions shall be suspended and payment thereof withheld until the Comptroller of the Treasury shall approve, disapprove, or modify such decisions and certify his actions to the Auditor. All decisions made by the Comptroller of the Treasury under this act shall be forthwith transmitted to the Auditor or Auditors whose duties are affected thereby. Sec. 8, id.

210. Preservation of accounts.-The auditors shall, under the direction of the Comptroller of the Treasury, preserve with their vouchers and certificates all accounts which have been finally adjusted. Sec. 8, id.

211. Settlements not to be reopened.-Nothing in this act shall be construed to authorize the reexamination and payment of any claim or account which has heretofore been disallowed or settled.1 Sec. 23, id.

'The accounting officers have no jurisdiction to reopen settlements made by their predecessors, because a subsequent decision of the courts has so changed the construction of the law under which the settlements were made as to warrant a different result in the settlements. (2 Comp. Dec., 401.)

Settled accounts in the Treasury Department, where the United States have acted on the settlement and paid the balance therein found due, can not be opened or set aside years afterwards merely because some of the prescribed steps in the accounting which it was the duty of a head of a department to see had been taken had in fact been omitted, or on account of technical irregularities when the remedy of the party against the United States is barred by the statute of limitation and the remedies of the United States are intact, owing to its not being subject to an act of limitation. (U. S. v. Johnston, 124 U. S., 236, 1 Comp. Dec., 192.)

An error by a predecessor in construing the law applicable to the claim he has adjusted is no ground for a rehearing. (See vol. 19, Ct. Cls. Dec., 508; 23 id.. 123; 25 id., 327; and 29 id., 225; U. S. Supreme Court Dec., 15 Pet., 400; 11 Comp. Dec., 459.)

An error by a predecessor in construing the law, applicable to the claim he has adjusted is no ground for a rehearing. (See vol. 19. Ct. Cls., 508; 23 id., 123; 25 id., 327; and 29 id., 225; 15 Pet., 400; 11 Comp. Dec., 459.)

The accounting officers of the Treasury Department are not authorized to reopen accounts settled by their predecessors except for the purpose of correcting mistakes of fact arising from errors in calculation, or upon the production of newly discovered material evidence, or for fraud. (14 Comp. Dec., 795.)

The act of July 31, 1894, does not take from the accounting officers the right to reopen accounts which have been settled, either by themselves or their predecessors, for the purpose of correcting mistakes of fact arising from errors of calculation, or upon the production of newly discovered material evidence, or for fraud or collusion. (4 Comp. Dec., 303; but see 1 id., 27; 2 id., 210.) The Comptroller has the exclusive right to reopen an account which has been revised by himself or his predecessors. (4 id., 303.) Before the expiration of a year the right of revision by the Comptroller is exclusive, and an Auditor can not reopen an account within that period. After the expiration of a year from the

212. Accounts of Government officers in the District of Columbia accessible to accounting officers.-All books, papers, and other matters relating to the accounts of officers of the Government in the District of Columbia shall at all times be subject to inspection and examination by the Comptroller of the Treasury and the Auditor of the Treasury authorized to settle such accounts, or by the duly authorized agents of either of said officials. Sec. 5, Act of Mar. 15, 1898 (30 Stat. 316).

213. Accounts of line officers-Settlement of.-The Auditor of the Treasury for the War Department shall audit and settle the accounts of line officers of the Army, to the extent of the pay due them for their services as such, notwithstanding the inability of any such line officer to account for property intrusted to his possession, or to make his monthly reports or returns, if such Auditor shall be satisfied by the affidavit of the officer or otherwise that the inability was caused by the officer's having been a prisoner in the hands of the enemy, or by any accident or casualty of war. Sec. 278, R. S., as amended by Sec. 7 of the Act of July 31, 1894 (28 Stat. 206).

214. Evidence of honorable discharge to be returned to officers and enlisted men.-In all cases where it has become necessary for any officer or enlisted man of the Army to file his evidence of honorable discharge from the military service of the United States, to secure the settlement of his accounts, the accounting officer with whom it has been filed shall, upon application by said officer or enlisted man, deliver to him such evidence of honorable discharge; but his accounts shall first be duly settled, and the fact, date, and amount of such settlement shall be clearly written across the face of such evidence of honorable discharge, and attested by the signature of the accounting officer before it is delivered. Sec. 282, R. S.

215. Claims and accounts-Settlement of. All claims and demands whatever by the United States or against them, and all accounts whatever in which the United States are concerned, either as debtors or creditors, shall be settled and adjusted in the Department of the Treasury. Sec. 236, R. S.

date of settlement, an Auditor has the exclusive right to reopen an account settled by himself or his predecessors. (Id.)

Under section 8 of the act of July 31, 1894, the Comptroller of the Treasury is authorized to revise, upon his own motion, all items embraced in an account, including items upon which payment has been accepted; and, in particular instances, where justice requires it, such authority may be exercised in favor of a claimant. (4 Comp. Dec., 623.)

1The act of March 3, 1849 (9 Stat. 414; secs. 3482-3487, R. S.), provided for the reimbursement of officers and men for horses and other private property lost in the military service. Several limitations upon the filing of claims under this act have been enacted by Congress; but the general limitation will be found in section 2 of the act of January 9, 1883 (22 Stat. 401), which contains the requirement that "all claims arising under the act approved March 3, 1849, and all acts amendatory thereof, which shall not be filed in the proper

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216. Claims allowed to be reported to Congress.-The Secretary of the Treasury shall, at the commencement of each session of Congress, report the amount due each claimant whose claim has been allowed in whole or in part to the Speaker of the House of Representatives and the presiding officer of the Senate, who shall lay the same before their respective Houses for consideration. Sec. 2, Act of July 7, 1884 (23 Stat. 254).

217. Claims for property lost or destroyed. The proper accounting officers of the Treasury are hereby authorized and directed to examine into, ascertain, and determine the value of the private property belonging to officers and enlisted men in the military service of the United States which has been, or may hereafter, be, lost or destroyed in the military service, under the following circum

stances:

department within one year after the passage of this act shall be forever barred and shall not be received, considered, or audited by any department of the Government." Section 2 of the act of August 13, 1888 (25 Stat. 437), suspended the limitation as to the presentation of claims for losses of horses during the war of the rebellion for three years. The act of March 3, 1849, therefore became inoperative in respect to general claims on August 13, 1889, and as to claims for horses, etc., lost during the rebellion, on August 13, 1891.

The act of January 9, 1883 (22 Stat. 401, sec. 2), providing that all claims for horses lost in battle, etc., which are not filed in the proper department within one year after the passage of the act will be barred and shall not be considered by any department of the Government, does not extend to the jurisdiction of authority of this court. The words "filed in the proper department," and the words "received, considered, and audited by any department of the Government," are not words of description in reference to the jurisdiction of a court. (Hardie v. U. S., 39 Ct. Cls., 250.)

In the performance of the duty imposed by this statute the Secretary of the Treasury is not subject to the control of the courts of the United States, and the duty not being ministerial in character a writ of mandamus will not lie to compel the allowance of a claim presented under the statute. Kendall v. Stockton, 12 Pet., 524; Decatur v. Paulding, 14 Pet., 497, 515; U. S. v. Guthrie, 17 How., 284, 304; Brashear v. Mason, 6 How., 92, 102. Such action on the part of the courts would also be in the nature of entertaining a suit against the United States, which is not within their jurisdiction. U. S. v. Guthrie, 17 How., 284, 305.

Where a claim within the scope of his official authority was submitted to the Secretary of the Treasury, and by him decided adversely, it is incompetent for his official successor to set the same aside or reopen it unless there has been a mistake in a matter of fact or material testimony discovered and produced. V Opin. Att. Gen., 664. A head of a department of the Government has no right to review the acts of his predecessors, except to correct an error of calculation. He can not recall a credit given or allowance made. Such action is for the judiciary. U. S. v. Bank of Metropolis, 15 Pet., 377.

The accounting officers of the Treasury have no jurisdiction to settle claims for unliquidated damages arising from the torts of the agents of the Government. II Comp. Dec., 174, 487; McKee v. U. S., 12 Ct. Cls., 556; Dennis r. U. S., 20 id., 119; XIV Opin. Att. Gen., 24. Nor have the accounting officers such jurisdiction over a claim for unliquidated damages not arising from the tortious act of an officer of the Government. II Compt. Dec., 487; I id., 261; II id., 174.

The accounting officers of the United States are without jurisdiction to examine and settle individual claims of officers and enlisted men of the organized militia of a State, Territory, or District of Columbia for pay, subsistence, and transportation while engaged, under the provisions of section 14 of the act of January 21, 1903, in field or camp service for instruction. (X Comp. Dec., 635.)

First. When such loss or destruction was without fault or negligence on the part of the claimant.1

Second. Where the private property so lost or destroyed was shipped on board an unseaworthy vessel by order of any officer authorized to give such order or direct such shipment."

Third. Where it appears that the loss or destruction of the private property of the claimant was in consequence of his having given his attention to the saving of the property belonging to the United States which was in danger at the same time and under similar circumstances. And the amount of such loss so ascertained and determined shall be paid out of any money in the Treasury not otherwise appropriated, and shall be in full for all such loss or damage: Provided, That any claim which shall be presented and acted on under authority of this act shall be held as finally determined, and shall never thereafter be reopened or considered: And provided jurther, That this act shall not apply to losses sustained in time of

'Clause first stands alone as an independent basis for a claim, and was intended to reach cases not covered by the other two clauses. This clause is broader in its scope than the two succeeding clauses, but absence of fault or negligence must be proven if the claim is made under it. Broad as this clause is, it does not cover every case of loss an officer or soldier might sustain in his reasonable, useful, and necessary" property while he was in the military service. (II Compt. Dec., 644, 647.)

Stating the proposition in other words, it does not make the United States the absolute insurer, against all accidents and contingencies, of the reasonable, useful, and necessary property of officers and soldiers. To entitle a person to reimbursement under this clause the loss or destruction must be without fault or negligence, directly or indirectly, near or remote, of the owner, and must have been caused by, or resulted from, some exigency or necessity of the military service. It must reasonably be attributable to the fact that it was held in the military service, whereby the owner was deprived, in some degree, of the control over it which he would have in civil life, and where it would be subjected to dangers not ordinarily incident to its use in civil life. Under all conditions of a use of such personal property as is covered by the law it is subject to deterioration and loss; but in the military service the dangers are greater and peculiar because of the environments of that service. It was to provide against personal loss resulting from these special and peculiar dangers that this law was enacted. Any other view of the law would make the United States the insurer of all personal property necessarily used in its service by officers and soldiers. This can not have been the intent of Congress. If it be held that absence of fault or negligence is the only condition precedent to reimbursement an officer would be entitled to payment for a horse dying from old age, or a uniform, side arms, or household furniture worn out in use. (III id.. 637.)

'The true construction of clause second is that the claimant is entitled to reimbursement without being required to show, affirmatively, that he was not guilty of negligence, "where the private property was shipped on board an unseaworthy vessel by order of any officer authorized to give such order or direct such shipment." The leading idea in this clause is that the loss would be attributable to the unseaworthiness of the vessel, and that the soldier sustaining the loss would have no option as to the shipment on said vessel and no responsibility for a loss under such circumstances. (II id., 647.)

To entitle a person to recover under the first clause of the act the following facts, among others, must be established:

1. The loss must be of private property of the officer or soldier. "The articles must not only belong to him, but must be used by him and for him alone, as it were, personal to him in the performance of his duty." 2. The property must be such as the Secretary of War shall decide to be