to legislate, and except where legislation is clearly incident to an appropriation we do not attempt to, and even then we have to run the gantlet of any point of order that might be made on the floor.

Mr. SULZER. Yes.

Mr. SHERLEY. Section 8 of the good-roads law reads as follows: SEC. 8. That there is hereby appropriated and made available until expended, out of any moneys in the National Treasury not otherwise appropriated, the sum of $1,000,000 for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and each fiscal year thereafter, up to and including the fiscal year ending June thirtieth, nineteen hundred and twenty-six, in all $10,000,000, to be available until expended under the supervision of the Secretary of Agriculture, upon request from the proper officers of the State, Territory, or county for the survey, construction, and maintenance of roads and trails within or only partly within the national forests, when necessary for the use and development of resources upon which communities within and adjacent to the national forests are dependent: Provided, That the State, Territory, or county shall enter into a cooperative agreement with the Secretary of Agriculture for the survey, construction, and maintenance of such roads or trails upon a basis equitable to both the State, Territory, or county, and the United States: And provided also, That the aggregate expenditures in any State, Territory, or county shall not exceed ten per centum of the value, as determined by the Secretary of Agriculture, of the timber and forage resources which are or will be available for income upon the national forest lands within the respective county or counties wherein the roads or trails will be constructed; and the Secretary of Agriculture shall make annual report to Congress of the amounts expended hereunder, $1,000,000.

Mr. SULZER. That simply provides, Mr. Chairman, for the construction of roads in the national forests.

Mr. SHERLEY. Well, practically, although there may be some lands adjacent to or incident to the development of the national forests.

MONDAY, AUGUST 13, 1917.

DEPARTMENT OF JUSTICE.

STATEMENTS OF MR. HARVEY D. JACOB AND MR. SETH SHEPARD, ATTORNEYS.

JUDGMENT IN FAVOR OF THE STATE OF MASSACHUSETTS.

Mr. SHERLEY. There has been certified by the Court of Claims a judgment in favor of the State of Massachusetts for $886,389.68, being based upon premiums paid for coin with which to pay bonds issued for moneys borrowed and used to furnish State troops for United States service during the Civil War. The act that confers jurisdiction on the Court of Claims to adjudicate this claim directs the Court of Claims to determine the law and the facts and to report to Congress. Can you explain just why this claim is certified as a claim to be paid?

Mr. JACOB. The Court of Claims decided in the Fond du Lac Indian case and the Supreme Court has also decided in a casethat where the wording of the act was similar to this act that that gave the court general jurisdiction to render a judgment, and the Court of Claims took the same view of this case.

Mr. SHERLEY. Have you those citations?

Mr. JACOB. The Fond du Lac Indians against the United States (34 Ct. Cls., 426) and Irvin against the United States (127 U. S., 125).

Mr. SHERLEY. Did the Department of Justice undertake to come to a conclusion as to whether this judgment should be certified as a judgment to be paid by Congress?

Mr. JACOB. The Department of Justice, through the Solicitor General, who passes upon all appeals, and the Assistant Attorney General in charge of the bureau for the defense of suits, had the matter of an appeal to the Supreme Court under consideration for more than a month and decided not to appeal the case. That was certified to the Secretary of the Treasury, and as a result of that certification the only thing left for the Secretary to do was to certify the judgment for payment. That is the usual course, as I understand it. We attorneys, after we try cases in the Court of Claims and lose them, if we do, why, the question of appeal is ultimately determined by the Solicitor General, and we have nothing to do with appeals; but, as I say, that question was under consideration more than a month, and they decided that the chances of reversal were not sufficient to justify an appeal.

Mr. SHERLEY. Please state what was the judgment of the court, not the opinion?

Mr. JACOB. The judgment of the court was that the State of Massachusetts was entitled to recover from the United States this sum. Mr. SHERLEY. Have you that judgment?

Mr. JACOB. I have the judgment and the opinion; yes, sir.

(The judgment and the opinion of the Court of Claims follow:)

[Court of Claims of the United States. No. 33632. (Decided April 9, 1917.) The State of Massachusetts v. The United States.]

This case having been heard by the Court of Claims, the court, upon the evidence, makes the following

FINDINGS OF FACT:

I.

The act of Congress approved July 16, 1916, conferring jurisdiction on the Court of Claims, provides as follows:

"AN ACT CONFERRING JURISDICTION ON THE COURT OF CLAIMS TO ADJUDICATE THE CLAIMS OF THE STATE OF MASSACHUSETTS.

"Be it enacted, etc.. That the claim of the State of Massachusetts for premium paid for coin with which it paid the interest and principal of its bonds issued in the year eighteen hundred and sixty-one for money borrowed and used to furnish troops of the State for the service of the United States during the Civil War; and also its claim for interest, and premium paid for coin in payment of such interest, on bonds issued for money borrowed and expended at the request, during said war, of the President of the United States, in protecting the harbors and fortifying the coast, which claims were rejected by the Comptroller of the Treasury Department, be, and the same are hereby, referred to the Court of Claims for determination of the law and the facts and report to Congress. The evidence of the amount of said expenditures and of the computations of such premiums made by the accounting officers of the Treasury on file in said department, as furnished by the State, may be considered by the court so as to relieve the State of the necessity of again filing said evidence in court."

The act of July 27, 1861, 12 Stat., 276, and joint resolution of March 8, 1862, authorizing reimbursement to the States for war expenditures, provides as follows:

"That the Secretary of the Treasury be, and he is hereby, directed, out of any money in the Treasury not otherwise appropriated, to pay to the governor of any State, or his duly authorized agent, the costs charges, and expenses properly incurred by such State in enrolling subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding to suppress the present insurrection against the United States, to be settled upon proper vouchers to be filed and passed upon by the proper accounting officers of the Treasury."

The joint resolution approved March 8, 1862, 12 Stat., 615, provides that the foregoing act shall be construed to apply to expenses incurred as well after as before the date of the approval.

The act of Congress approved February 14, 1902, directing the accounting officers of the Treasury to pay expenses for military purposes, provides as follows:

"And claims of like character [referring to the claims of States therein appropriated for] arising under the act of Congress July twenty-seven, eighteen hundred and sixty-one (Twelfth Statutes, page two hundred and seventy-six), and the joint resolution of March eighth, eighteen hundred and sixty-two (12 Statutes, page six hundred and fifteen), as interpreted and applied by the Supreme Court of the United States in the case of the State of New York against the United States, decided January sixth, eighteen hundred and ninety-six (One Hundred and Sixty United States Reports, page five hundred and ninetyeight), not heretofore allowed or heretofore disallowed by the accounting officers of the Treasury shall be reopened, examined, and allowed, and, if deemed necessary, shall be transmitted to the Court of Claims for findings of fact or determination of disputed questions of law to aid in the settlement of the claims by the accounting officers." 32 Stat., 30.

The act of the Legislature of the State of Massachusetts approved March 22, 1862, providing for the payment of the principal and interest of its bonds in coin, provides as follows:

CHAPTER 82.

"SECTION 1. The interest and principal of all scrip or bonds of the Commonwealth of Massachusetts which have been or may hereafter be issued shall when due be paid in gold or silver coin.

"SECTION 2. Whenever the interest or principal of any scrip or bonds of the Commonwealth shall become due the treasurer and receiver general shall procure coin for the payment of the same, and the governor shall draw his warrant for such sum as may be found necessary to procure such coin, to be paid out of any moneys then in the treasury of the Commonwealth. "SECTION 3. This act shall take effect upon its passage."

II.

The State of Massachusetts at the request of the United States armed and equipped its quota of Volunteers for the service of the Federal Government Curing the Civil War. In order to raise the money required for that purpose it was necessary for the State to borrow it. It, therefore, in pursuance of the act of its legislature approved May 21, 1861, borrowed three millions of dollars on its bonds, which bore interest at the rate of six per centum per annum from July 1, 1861. They were payable beginning July 1, 1871, and ending July 1, 1876. Under the provisions of the act of its legislature approved April 25, 1862. the State borrowed $600,000 more on its bonds for said purpose. They bore interest at the rate of five per centum per annum and were payable July 1, 1877. These bonds were all denominated "Union loan bonds."

The three million dollars of bonds issued under said act of the legislature of May 21, 1861, were sold prior to March 22, 1862. The said act of May 21, 1861, under which the bonds were issued, did not state that the bonds were payable principal or interest in coin. No part of the principal or interest of these bonds was paid prior to the legal-tender act.

III.

On the tenth day of October, 1902, the State filed an amended claim in the Treasury Department for interest and premium paid for coin with which such interest and a part of the principal of said Union loan bonds had been paid. It

also included a claim for interest, and premium paid for coin with which said interest was paid, on money borrowed by the States on its five per cent twentyyear bonds, issued under the act of its legislature of March 30, 1863, for the purpose of protecting the harbors and strengthening the fortifications on the coast. Other items of expense were also included in said claim.

The auditor for the War Department computed and allowed such interest and premium paid on $2,567,500 of the total issue of said Union loan bonds. He disallowed the interest and premium claimed on said coast defense improverment bonds. IV.

The comptroller overruled the allowance of the auditor of premium paid on the Union loan bonds issued in 1861 and disallowed the same. He affirmed the auditor's allowance of interest claimed thereon and also on the Union loan bonds issued under the act of the legislature approved April 25, 1862, and the premium which the State had paid on said bonds of 1862 and other expense. He affirmed the auditor's disallowance of the coast-defense claim. These allowances were paid by appropriation April 27, 1904. 33 Stat., 424.

V.

An act of Congress was approved July 7, 1884, as follows:

"That_the_proper accounting officers of the Treasury Department be, and they are hereby, authorized and directed to examine the claim of the State of Massachusetts for expenses incurred and paid, at the request of the President and Secretary of State, during the war, in protecting the harbors and strengthening the fortifications on the coast, now on file with the third auditor, under the act of July twenty-seven, eighteen hundred and sixty-one (12 Stat. page two hundred and twenty-six) and report the amount to Congress." 23 Stat., 204.

The State had made these improvements with money borrowed on its bonds issued in pursuance of the act of its legislature of March 30, 1863. The accounting officers allowed $209.885.61. This was paid by appropriations, as follows: Acts of October 19, 1888, 25 Stat., 600; act of March 2, 1889, 25 Stat., 937.

The computation made by Auditor B. F. Harper, of the amount of interest and premium paid by the State on bonds representing above allowance, was $233,885.82, which amount, as stated, was by him and the comptroller disallowed.

VI.

The State paid $979,395.94 for premium on coin to pay principal and interest on its Union loan bonds issued in 1861 and 1862 for the purpose stated in request for finding No. 2. There was refunded to the State $93,006.06, being premium thus paid on said bonds of 1862. The amount of such premium unpaid is $886.389.68. The State paid for interest and premium on coast-defense bonds $233.885.82, which has not been refunded to it.

CONCLUSION OF LAW.

Upon the foregoing findings of fact the court decides, as a conclusion of law, that the plaintiff is entitled to recover the said sum of eight hundred eighty-six thousand three hundred eighty-nine dollars and sixty-eight cents ($886.389.68), shown in finding VI, and is not entitled to recover the said sum of $233,885.83 also shown in Finding VI, and the petition as to this item is dismissed.

OPINION.

BARNEY, Judge, delivered the opinion of the court.

This is a suit brought by the State of Massachusetts by virtue of the following jurisdictional act of Congress, which speaks for itself as to its purpose: "That the claim of the State of Massachusetts for premium paid for coin with which it paid the interest and principal of its bonds issued in the year eighteen hundred and sixty-one for money borrowed and used to furnish troops of the State for the service of the United States during the Civil War; and also its claim for interest and premium paid for coin in payment of such interest, on

bonds issued for money borrowed and expended at the request, during said war, of the President of the United States. in protecting the harbors and fortifying the coast, which claims were rejected by the Comptroller of the Treasury Department, be, and the same are hereby referred to the Court of Claims for determination of the law and the facts, and report to Congress. The evidence of the amount of said expenditures and of the computations of such premiums made by the accounting officers of the Treasury on file in said department, as furnished by the State, may be considered by the court so as to relieve the State of the necessity of again filing said evidence in court."

It will be seen that this act provides for the consideration of two claims; first, the claim for the State of Massachusetts on account of premium paid for coin in payment of interest on bonds issued for money borrowed and expended to furnish troops of the State for the service of the United States during the Civil War; second, its claim for interest and premium paid for coin in payment of such interest on bonds issued for money borrowed and expended during said war in protecting the harbors and fortifying the coast.

The facts involved are all a matter of record and are in effect agreed upon by the parties. The legal aspect of the case and its history are substantially as follows:

First claim.-July 27, 1861, 12 Stats., 276, the Congress enacted the following statute:

"That the Secretary of the Treasury be, and he is hereby, directed, out of any money in the Treasury not otherwise appropriated, to pay to the governor of any State, or his duly authorized agent, the costs, charges, and expenses properly incurred by such State in enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding to suppress the present insurrection against the United States, to be settled upon proper vouchers to be filed and passed upon by the proper accounting officers of the Treasury."

A joint resolution of Congress approved March 8, 1862, 12 Stats., 615, provides that the foregoing act shall be construed to apply to expenses incurred after as well as before the date of approval.

Pursuant to this, the State of Massachusetts armed and equipped volunteers for the service of the Federal Government during the Civil War and paid the cost, charges, and expenses incurred for that purpose. There being no money in the treasury of the State not otherwise appropriated, it became necessary for the State to raise the money required by borrowing it upon its bonds. Therefore, in pursuance of the act of its legislature approved May 21, 1861, it borrowed three millions of dollars on its bonds, which bore interest at the rate of 6 per cent per annum. They were payable beginning July 1, 1871, and ending July 1, 1876. Under the provisions of the act of its legislature approved April 25, 1862, the State borrowed $600,000 more on its bonds for the same purpose, and these bonds bore interest at the rate of 5 per cent per annum and were payable July 1, 1871. These bonds were all denominated Union loan bonds. The act of the Legislature of the State of Massachusetts approved March 22, 1862, provided that:

"The interest and principal of all scrip or bonds of the Commonwealth of Massachusetts which have been or may hereafter be issued shall, when due, be paid in gold or silver coin."

The Supreme Court in the case of New York v. United States, 160 U. S. 598, decided that that State was entitled to recover from the United States interest upon its bonds issued to defray the expenses to be incurred in raising troops for the national defense pursuant to the act of June 27, 1861. Whereupon the several States which had paid interest for that purpose, including the State of Massachusetts, filed claims with the Treasury Department for interest so expended. The State of Massachusetts also included in her claim as a part thereof the premium expended upon coin for that purpose. This premium, paid for coin which paid the interest on bonds issued under the act of the legislature of April 25, 1862, for the sum of $600,000, as hereinbefore stated, was paid. But the claim for premium on coin used to pay the interest on the bonds issued in July, 1861, was rejected, the same being the sum of $886,389.68, and it is for the recovery of that sum so rejected that this suit is brought, together with the second claim, which is as follows:

Second claim.-The State of Massachusetts had expended the sum of $209,885.61 soon after the outbreak of the Civil War for the purpose of protecting the harbors and strengthening the fortifications on the coast and had filed a claim for said sum so expended with the accounting officers of the Government, but did not include in said claim any claim for interest.