nothing would ever be settled. The decision of a Comptroller, when once made, "is final and binding." The Supreme Court has determined this question in Murray's Lessee et al. v. Hoboken Land and Improvement Company (18 How., 280). In that case it appeared that, under the act of May 15, 1820 (3 Stat., 592), the First Comptroller stated an account against a defaulting collector, and certified the same to the agent of the Treasury who issued a warrant of distress against the delinquent officer, and that under this his real estate was sold. The court held that the certificate of the Comptroller, the warrant, and the sale thereon, were valid as executive acts, and constituted "due process of law." The court said: "That the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act, must be admitted. So are all those administrative duties the performance of which involves an inquiry into the existence of facts and the application to them of rules of law. In this sense the act of the President in calling out the militia under the act of 1795, 12 Wheat., 19, or of a commissioner who makes a certificate for the extradition of a criminal, under a treaty, is judicial. The following papers refer to the subject-matter of this opinion: TREASURY DEPARTMENT, FOURTH AUDitor's Office, May 8, 1883. Hon. WILLIAM LAWRENCE, First Comptroller : SIR: In answer to your letter of the 3d inst., you are respectfully informed that it does not appear from the files and records of this office that the opinion of Hon. Jeremiah S. Black, U. S. Attorney-General, of the 4th of June, 1857 (9 Opinions, 33), was ever followed by the Fourth Auditor, nor that the allowance of the $36,000, referred to in that opinion, was ever made until the passage by Congress of Post-Office bill of June 25, 1860, which specially appropriated the sum of $80,282.72, which, it is believed, included that and other deductions made subsequent to the rendering of the opinion, and which amount was paid to E. K. Collins and associates, in accordance with the provisions of said act. I am, very respectfully, your obedient servant, CHAS. BEARDSLEY, Auditor. POST-OFFICE DEPARTMENT, SIR: The certificates on the files of this Department show that the Collins line of steamers have performed twelve trips between New York and Liverpool, conveying the United States mail (six trips outward from New York and six trips inward) from the 30th of September to the 31st of December, 1856, inclusive. Four of these trips (two outward and two inward) having been performed by the "Ericsson," an irregular steamer, and not of the class stipulated for in the contract, I again advise, on account of the inferior service rendered, that there be allowed fifteen thousand dollars per round trip, or thirty thousand dollars for the four trips performed by said steamer. I therefore recommend that the sum of thirty-six thousand dollars ($36,000) be deducted from the mail pay of the quarter ended 31st December, 1856. I am, very respectfully, your obedient servant, Hon. J. C. DOBBIN, JAMES CAMPBELL. Secretary of the Navy. POST-OFFICE DEPARTMENT, SIR: The certificates on the files of this Department show that the Collins line of steamers have performed eight trips (three outward and five inward) between New But it is not sufficient to bring such matters under the judicial power, that they involve the exercise of judgment upon law and fact. United States v. Ferreira, 13 How., 40. It is necessary to go further, and show not only that the adjustment of the balances due from accounting officers may be, but from their nature must be, controversies to which the United States is a party, within the meaning of the second section of the third article of the Constitution. We do not doubt the power of Congress to provide by law that such a question shall form the subjectmatter of a suit in which the judicial power can be exerted. The act of 1820 makes such a provision for reviewing the decision of the accounting officers of the Treasury. But, until reviewed, it is final and binding; and the question is, whether its subject-matter is necessarily, and without regard to the consent of Congress, a judical controversy. And we are of opinion it is not." And see Ex parte Randolph (2 Brock., 447). The questions herein considered are of so much importance in practice, that it has been deemed proper to devote more time and space to them than is done in ordinary cases. The result thus far is: 1. That the balances certified as due to Reeside for the quarters ended respectively September 30, and December 31, 1880, and March 31, 1881, and which were paid, cannot now be opened up nor changed. York and Liverpool, from the 1st of January to the 20th of February, 1857, inclusive, and one outward trip subsequent to the 20th of February, 1857, making in all nine trips (four outward and five inward) conveying the United States mail. Four of these trips (two outward and two inward) were performed by the steamship"Ericsson," which was substituted on the line in place of the missing steamer "Pacific." Any question of reduction is referred to your Department. I am, very respectfully, your obedient servant, The Hon. the SECRETARY OF THE NAVY. AARON V. BROWN. NAVY DEPARTMENT, July 6, 1857. SIR: I inclose herewith the copy of a communication from the Post-Office Department certifying to the mail service performed by the Collins line of steamships between New York and Liverpool during the months of January, February, and March of the present year. You will be pleased to state the account for this service, making the same deductions for the inferior service performed by the "Ericsson" that have been heretofore recommended by the Post-Office Department for similar inferior service during any quarter previous. In compliance with the provisions contained in the act of Congress, approved August 18, 1856, directing the Secretary of the Navy to give the notice contemplated in the act approved July 21, 1852, to terminate the arrangement for the additional allowance provided for in the act, notice was given on the 20th of August, 1856, to Messrs. E. K. Collins & associates that the additional allowance referred to would terminate in six months from that date. Very respectfully, your obedient servant, A. O. DAYTON, Esq., Fourth Auditor. I. TOUCEY. NAVY DEPARTMENT, July 29, 1857. SIR: The attention of the Department has been called to the settlement with E. K. Collins and associates for mail service for the quarter ending 30th June, 1857, between New York and Liverpool, performed by the steamers of the Collins line. It was the intention of the Department that the service of the Ericsson should be paid for at the rate of $15,000 per round trip, and you will be pleased to restate the account for that quarter, allowing for the Ericsson that rate of compensation. Very respectfully, your obedient servant, A. O. DAYTON, Esq., Fourth Auditor. ISAAC TOUCEY. 2. That such certified and paid balances do not interfere with the right of the Postmaster-General to order, and of the proper Auditor to certify, against the contractor disallowances for failures to perform trips "occasioned by the fault of the contractor or carrier." 3. The settlement for the quarter ended September 30, 1880, charged the contractor with 12 failures to arrive and depart at Elizabeth City and Williamston. The order of April 30, 1881, charged the contractor with 25 additional deductions for failures on 83 miles to September 30, $538. This order of April 30, 1881, was unauthorized and void. The same order makes additional deductions for additional failures for the quarter ended March 31, 1881, which additional deductions are equally unauthorized and void. 4. The order of August 6, 1881, reversed the former order, and made the total deductions for failures to perform trips $1,799.87, in all, instead of $2,581.42, as in the previous order. This was unauthorized and void. The same order imposed a fine of $500 for willful failure of contractor to perform steamboat service. This fine was also unauthorized and void. There is no authority to impose a fine in such case. 5. The order of December 14, 1881, remitted the fine of $500, and increased the total deductions to $2,299.83. The difference between this latter sum and $1,799.87, being $499.96, was evidently designed as the sum to be charged against the contractor for penal deductions for failures to perform trips "occasioned by the fault of the contractor or carrier"—that is, this sum of $499.96 was the amount charged against the contractor for penal deductions, besides $1,799.87 for the single prices of trips not performed. This order was the first in which the authority of the Postmaster-General was exercised on the subject of such additional penal deductions, and, as to this sum of $499.96, it was authorized, and is supported by the evidence. The latter amount of $499.96 may lawfully be deducted from the sum of $1,607.14 stated as due for service from April 1, to May 30, 1881. The account will therefore now stand thus: * These items of $795.22 and $124.25 are ascertained as follows: The sum of $795.22 is included in the order of August 9. 1881; the sum of $124.25 is ascertained by the 5-32 pro rata on $795.22, under order of December 14, 1881, in lieu of fine of $125 imposed by order of August 9, 1881. The contract was lawfully aunulled for "repeated failures to run agreeably to contract." The appellant is not entitled to one month's extra pay. The question, whether the balance of $306.80 found due to the United States can be deducted from any sum which has been, or may be, found due to the contractor for mail service under other contracts, does not now arise. Such question can only be decided by the First Comptroller in case it is presented on appeal from the action which may be taken by the proper Auditor under such other contract. The question, whether such balance of $306.80 can be recovered by judicial action against the contractor, is one which is not to be decided by the First Comptroller. The following order is made: In the matter of the appeal to the First Comptroller taken by J. E. Reeside from the action of the Auditor of the Treasury for the PostOffice Department in relation to the claims of said Reeside for compensation, &c., for service performed under contract of July 27, 1880, for transporting the mail on route No. 13095 from Elizabeth City, North Carolina, to Williamston, &c. This appeal came on to be heard on the papers and evidence transmitted to the First Comptroller by the Auditor of the Treasury for the Post-Office Department, and on other evidence introduced by the appellant, J. E. Reeside, and said Reeside having appeared in person and by his counsel, Hon. John J. Weed, and having argued said appeal before the First Comptroller, who being fully advised in the premises: It is by the said First Comptroller in the Department of the Treasury of the United States considered, ordered, and adjudged, that the action of said Auditor in certifying a balance due for services rendered on said mail-route No. 13095 for the several quarters ended September 30, and December 31, 1880, and March 31, 1881, is ratified, approved, and confirmed; and that the action of said Auditor in stating an ac count April 12, 1882, and finding a balance due from said Reeside to the United States of $1,663.21 is reversed and set aside. And said First Comptroller does now find that the United States is indebted to said Reeside in the sum of $1,607.14 for service under said contract on said route No. 13095 from April 1, to May 30, 1881, inclusive; that the United States has paid thereon to a subcontractor entitled thereto $494.51; that the Postmaster General has duly found and ordered that $499.96 should be deducted from the pay of said Reeside as contractor for failures occasioned by the fault of said contractor or carrier to perform service according to contract on said route, over and above all deductions for the price of trips not performed, without reference to such fault, for the period prior to April 1, 1881; and that said Postmaster-General has duly found and ordered that $795.22 should be deducted from the pay of said Reeside as contractor on said route for the price of trips not performed according to said contract between April 1, and May 30, 1881, and that a deduction of $124.25 should be made for failures occasioned by the fault of said contractor or carrier to perform service according to said contract within said period last named; all of which findings and orders to the extent mentioned, and the action of said Auditor in stating an account on the basis of said findings and orders to the extent stated, are approved, ratified, and confirmed. And it is further considered, ordered, and adjudged that the United States does not owe, and is not indebted to, said Reeside in any sum whatever on account of said contract, or for service rendered by reason thereof, but that, if, upon the facts stated and found as aforesaid, there may lawfully be due from said Reeside to the United States any sum, then there should be and is due from him to the United States the sum of $306.80, and it is now so adjudged accordingly. And, so far as the United States can, upon said facts and judgment, lawfully retain from said Reeside said sum on account of any sum or sums due, or to become due, from the United States to said Reeside, it is adjudged that the United States shall have such right, and the right also, if any can lawfully exist, to maintain an action in any court of competent jurisdiction to recover said sum. And it is adjudged, that, in case the law does not authorize the United States to retain such sum or maintain any such action so mentioned, the rights of said Reeside shall not be prejudiced by the premises.* TREASURY DEPARTMENT, First Comptroller's Office, May 9, 1883. NOTE BY FIRST COMPTROller. * In this connection the following is presented for information: Hon. C. J. FOLGER, Secretary of the Treasury. DEPARTMENT OF JUSTICE, SIR: I have considered the case presented in the accompanying letter of the Auditor of the Treasury for the Post-Office Department, dated the 1st instant, which was referred to the Attorney-General by the Hon. H. F. French, Acting Secretary of the Treasury, on the 3d instant, with a request for an opinion upon the question suggested therein. The letter states: In a case pending in this office [i. e., office of the Auditor], the pay of a contractor is held to be applied to indebtedness incurred by reason of fines, forfeitures, and penalties, certified to the Auditor by the Postmaster-General, in accordance with the law and a contract entered into with J. E. Reeside, for the transportation of the mails, for the proper performance of which contract Edwin Reeside was one of the sureties. Edwin Reeside is also a contractor for the transportation of the mails, and there not being enough due J. E. Reeside to cover the indebtedness, the pay of Edwin Reeside, surety, has also been withheld, with the view to protecting the Government from loss on account of the principal. "Before the service was performed by Edwin Reeside, for which payment is withheld, he gave a pay draft to Joseph Lockey, for money had and received by Reeside to his use, as has long been a custom and usage with contractors for the transportation of the mails; and Mr. Lockey feels aggrieved, and protests against the action of the Auditor in withholding the payment of this draft, with a view to meeting Edwin Reeside's liability to the Government as the surety of J. E. Reeside. As no appeal from the action of the Auditor can be taken to the Comptroller in this case. I desire that you obtain the opinion of the Attorney-General upon the right of the Auditor to withhold payment to a surety, to protect the Government from loss, and the rights of the parties interested, upon the facts as herewith submitted." The draft given by Edwin Reeside, contractor, is dated February 17, 1881. It is drawn upon the Auditor in favor of Joseph Lockey or order, and calls for the payment of $987.50 out of any moneys due the drawer on route 11093 "for the quarter ending June 30, 1881." By the regulations of the Auditor's Office, drafts of mail contractors on their quarterly pay are not "accepted" but are simply received and placed on file, and they are moreover filed "subject to fines, deductions, collections, the amount due the subcontractor, in accordance with the act of Congress approved May 17, 1878, and any claim or demand the Post-Office Department may have against the contractor." These regulations are printed on the blank form of draft furnished by the Auditor, which was made use of in preparing the draft above mentioned; so that Mr. Lockey must be presumed to have had notice of their parport when he took the draft. At the time said draft was drawn by Edwin Reeside, he was a surety on the contract of J. E. Reeside, for transporting the mail on route 13095. In adjusting the account of J. E. Reeside for service performed under that contract for the quarter |