in those matters over which courts have exclusive jurisdiction, they generally adopt the construction given to statutes and the general principles of National executive common law established by executive officers (3 Lawrence, Compt. Dec., Introd., XXV; United States v. Moore, 95 U. S., 763; Edward's Lessee v. Darby, 12 Wheat., 210; United States v. The State Bank of North Carolina, 6 Pet., 29; United States v. MacDaniel, 7 Pet., 1; Smythe v. Fiske, 23 Wall., 374; United States v. Pugh, 99 U. S., 265; United States v. Bowen, 100 U. S., 511; Swift Co., v. United States, 105 U. S. 695).

And there are sufficient reasons for this. Executive officers must necessarily be more familiar with those statutes, and those questions, which they are constantly called upon to examine and enforce, than some of the Courts, in which they may be rarely considered.*

5. If the decisions of the Court of Claims are, on general principles of law, to be regarded as conclusive guides to accounting officers, a fortiori the decision of other courts of the United States not of last resort, but having power to render judgments subject to no rerision, must equally become such guides. If so, then the danger of perpetuating errors will be increased. And accounting officers will find it impossible to follow such a standard because decisions will be found conflicting. The result of attempting to establish such standard, is to find rules irreconcilably in conflict, not only with each other, but with principles settled by the highest courts of States.

It seems unnecessary to enlarge upon a question so completely set at rest by authoritative decisions, by reason, by statute, and the structure of the Government as ordained by the Constitution. The decis ions of the Court of Claims carry persuasive weight with accounting officers, who will adopt or reject them in executive administration, as they may deem them correct expositions of the law or otherwise. Such decisions impose no legal obligation on such officers, to follow them in practice. They may aid or enlighten such officers but they do not guide or control them.

The Comptrollers are by express statute authorized to examine accounts and to certify balances thereon. (Rev. Stat., 269). The exercise of this

It is possible that a Court may occasionally, as a Comptroller may frequently, overlook a question both of law and of fact, which is vital in the decision of a case (Farrar's Case 5 Lawrence Compt. Dec. 474, 468 n; Turner's Case Id. 429, S 443 : Grant's Case 18 Ct. Cl., 732: New York Central & Hudson R. R. Co.'s Case ante).

It may happen that a judge of great learning and ability may not have had his attention called to the different classes of appropriations, and so may not distinguish between a permanent specific, a permanent annual, or an annual appropriation, and an error in this respect may wholly change the proper conclusion to be reached (Coyle's Case 4 Lawrence Compt. Dec. 517; Farrar's Case, 5 Id. 47).

+ See and compare Grant v. United States (1 Ct. Cl., 41), with Respublica v. Sparhawk (1 Dall., 362); Wiggins v. United States (1 Ct. Cl., 182); Perrin v. United States (4 Ct. Cl., 546); and numerous authorities with comments thereon in Lawrence's Law of Claims against Governments (Chapter VI, pp. 281-297, being House Report No. 134, d Sess. 43d Congress).

power involves judicial discretion. Judicial action cannot be subject to any control or direction. It is independent of all control. The authority so given will continue to be exercised with that untrammeled independence of judgment which is essential to its proper exercise. TREASURY DEPARTMENT,

First Comptroller's Office, March 23, 1885.

CIRCUIT COURT OF THE UNITED STATES-SOUTHERN DISTRICT OF NEW

YORK.

FREDERICK FREDERICHS v. CHARLES R. COSTER.-JANUARY 10, 1885. 1. When a Collector of Internal Revenue seizes a distillery by order of an officer not authorized so to order, such Collector is not entitled to a certificate of "reasonable cause" under section 970 of the Revised Statutes.

2. In such case the collector is not entitled to a certificate of "probable cause" under section 989 of the Revised Statutes.

In May, 1876, the defendant, then Collector of Internal Revenue, seized the property of the plaintiff upon the pretense that he was unlawfully carrying on the business of a distiller. This issue was tried and resulted in a verdict for the plaintiff. The Collector asked for a certificate of reasonable cause, under Sec. 970 of the Revised Statutes, which was refused by the Court (United States v. Frederichs, 16 Blatchf. C. C. 547; [United States v. Abattoir Place] 16 Otto, 160, [106 U. S.]) The present action to recover damages was then commenced against the collector personally. The case was tried at the December Circuit and resulted in a verdict for the plaintiff.

COXE, J.

The Court is asked to grant a certificate, pursuant to Section 989 of the Revised Statutes, that the defendant "acted under the directions of the Secretary of the Treasury, or other proper officer of the Government."

The motion is founded upon the evidence of Edward McLeer, who testified in substance as follows:

"In May, 1876, I was a revenue agent attached to the office of the Supervisor of New York. I had examined the plaintiff's distillery and reported the result to the chief clerk of the supervisor, who was acting in the latter's absence. I was instructed by him to request the defendant to make the seizure of plaintiff's distillery. Subsequently I went to defendant's office, and, the defendant not being there, made the request of his deputy."

Do these facts present the case contemplated by the statute referred to? It is thought not. The construction of this testimony most favorable to the defendant is, that he acted pursuant to the request of a

revenue agent who was instructed to make the request by the chief clerk of a supervisor.

The plain intent of the statute, in my judgment, is that the direction to the collector shall shield him only when given by some officer of the Government who has the undoubted authority to direct. Unless the collector is under some obligation to heed the instructions, he is not protected.

The defendant here was not required to perform the unlawful act complained of because of any request or demand disclosed by this tes timony. Neither the revenue agent nor the chief clerk stood in such a relation to him that he could be protected by following their instruc tions or censured for refusing so to do.

Upon the case presented the defendant has not succeeded in showing that he acted under the directions of a "proper officer of the Government."

I do not mean to intimate that a revenue agent may not, in certain circumstances, be such an officer. He may receive from his chief instructions, general or special, clothing him with the most extensive powers. There is, however, no question of this character now before the court. And this is so, even if the pamphlet entitled "Instructions to Internal Revenue Officers concerning their accounts, etc.," submitted by the defendant's counsel, January 6th, 1885, is considered as properly in evidence, for I find therein no such instructions.

In a supplemental brief submitted for the defendant the proposition is advanced, that notwithstanding the refusal of the district court in the original proceedings to grant a certificate of "reasonable cause" under Section 970 of the Revised Statutes, this court may now certify "that there was probable cause for the act done by the collector," under Section 989.

There is very serious doubt whether this position can be sustained. To assert that there is probable cause for an act which is without reasonable cause certainly seems paradoxical. If the act is illegal, irrational and unjust; if there is no cause for it dictated by reason; no cause of sufficient importance to satisfy a reasonable man, it can hardly be maintained that a person guilty of such an act has probable cause for what he does. To hold otherwise would lead the court to the illog ical conclusion that a seizure made without reasonable cause, may yet be a seizure the justice of which is susceptible of proof, a seizure having a preponderance of argument in its favor, a seizure "supported by evidence which inclines the mind to belief."

It is thought that a result favorable to the defendant's theory in this regard can be reached only by a process of reasoning so attenuated that a distinction, if discovered, would in all probability be too infinitessimal for practical application. But, even conceding that the action of the District Court is not conclusive, it is sufficient upon this branch of the motion to say that there is nothing of [on] which to predicate a certifi

cate of probable cause, there is no evidence, properly before the Court, bearing upon this question in any appreciable degree.

For these reasons I am constrained, reluctantly, to refuse the certifi cate.

H. E. Davies for the motion.

Edward Salomon and Elihu Root, U. S. Attorney, opposed.

IN THE MATTER OF THE COMPENSATION OF THE COMMISSIONERS APPOINTED UNDER THE ACT OF JULY 7, 1884 (23 STAT., 227, 236), MAKING AN APPROPRIATION THEREFOR.-CENTRAL AND SOUTH AMERICAN

COMMISSIONERS' CASE.

1. The Commissioners appointed under the act of July 7, 1884 (23 Stat., 227, 236), "to ascertain the best modes of securing more intimate international and commercial relations betwen the United States and the several countries of Central and South America," are diplomatic officers of the United States.

2. Construction given to that provision of the act of July 7, 1884 (23 Stat., 227, 236), which authorizes the appointment of said Commissioners and the payment of compensation thereto.

3. Said act makes a permanent specific appropriation, for a designated service; the time for rendering which, and the duration thereof, are indefinite.

4. Said Commissioners have only such right to compensation as is given by the act of July 7, 1884 (23 Stat., 227, 236); and this provides a gross sum for the compensation of each Commissioner, in full for the entire service, which may be apportioned, and paid periodically in the lawful discretion of the Secretary of State.

5. Statutes in pari materia are to be construed together as one act.

6. The general terms of an appropriation-act are to be construed in subordination to the general provisions of other statutes on the same subject.

The following is taken from the act of July 7, 1884 (23 Stat., 227, 236): CHAP. 333.-An act making appropriations for the consular and diplomatic service of the Government for the fiscal year ending June thirtieth, eighteen hundred and eighty-five and for other purposes.

Be it enacted, That the following sums be, and they are hereby, severally appropriated for the consular and diplomatic service of the fiscal year ending June thirtieth, eighteen hundred and eighty-five, out of any money in the Treasury not otherwise appropriated, for the objects hereinafter expressed, namely:

For salaries of envoys extraordinary and ministers plenipotentiary to Great Britain, France, Germany, and Russia, at seventeen thousand five hundred dollars each, seventy thousand dollars.

For three commissioners to be appointed by the President, by and with the advice and consent of the Senate, at a compensation of seven thousand five hundred dollars each. Said commissioners shall ascertain the best modes of securing more intimate international and commercial relations between the United States and the several countries of Central and South America, and for that purpose they shall visit such countries in Central and South America as the President may direct.

For one secretary to said commission, to be appointed by the Presi dent, by and with the advice and consent of the Senate, three thousand

dollars; and in addition to the foregoing amounts such further sum as may be required for the reasonable expenses of said commission, such expenses to be paid upon the certificate of the chairman thereof and approved by the Secretary of State; and said commission shall report their action to the President, for transmission to Congress, with such recommendation as he may deem fitting.

Approved, July 7, 1884.

The history of this act in its progress through Congress is in part as follows:

April 26, 1884, introduced from the Committee on Appropriations, read twice, and referred to the Committee of the Whole (Cong. Record April 27, 1884); passed the House May 20 and referred to Committee on Ap propriations in Senate same day (Id. May 20); June 13, passed Senate with amendments including the provision for the appointment of the Commission and secretary thereto, now in question (Id. p. 5658); and referred to House Committee on Appropriations same day (Id., 5702); June 14, reported back to House, Senate amendments not concurred in, and Conference Committee appointed (Id., 5712, 5722); June 20, Senate Conference Committee appointed (Id., 5977); in House, report made, and part of disagreements adhered to (Id., 6883, 6902-6908); second conference report acted on (Id., 6884, 6886, 6908); July 5, third conference report acted on (Id., 6941, 6963); July 6, 1884, the House proceedings show:

"The conference committee has agreed upon all of the one hundred and sixty-seven amendments of the Senate except to provide

for three commissioners at $7,500 each to be appointed by the President to ascertain the best modes of securing more intimate international and commercial relations between the U. S. and the several countries of Central and South America" (Id., 6903).

Said amendment is numbered 166. Mr. Burnes of the Committee on Appropriations in the House said:

"What necessity can there be for a roving commission at $7,500 a year to each of its three members, with a secretary and with contingent and traveling expenses, to go wandering and junketing from State to State," &c. (Id. 6905).

July 6, by a vote of 111 to 76 the House receded from its disagreement to the said Senate amendment. July 7, Senate receded from its disagreement to the House amendments (Id., 6974). To sum up: bill passed House and sent to Senate May 20, 1884; amended and passed Senate June 13, 1884; particular clause in question, amendment of Senate No. 166, disagreed to in House, but disagreement receded from July 6, 1881.

The clause now in question was not in the bill as it first passed the House May 20, but was inserted as a Senate amendment prior to the passage of the bill in the Senate June 13.

July 7, 1884, George H. Sharpe, Solon O. Thatcher, and Thomas C. Reynolds were nominated by the President, confirmed by the Senate, and commissioned by the President as the Commissioners mentioned in said act; Thatcher took the oath of office July 26, Sharpe July 28, but Reynolds has not furnished any evidence of having taken the oath of office.

July 7, 1884, Henry L. Thomas was nominated by the President, and