APPEAL FROM THE COURT OF CLAIMS.
MR. JUSTICE PECKHAM, after stating the facts, delivered the opinion of the court.
Two questions arise in this case: (1) Whether the Court of Claims had jurisdiction of the claim; and (2) if it had, what is the true construction of the act of June 16, 1880, requiring the repayment to the purchaser, of the excess of $1.25 per acre
where the land purchased has afterwards been found not to be within the limits of a railroad land grant.
The ground upon which the learned Court of Claims decided that it had no jurisdiction in the case was that the remedy afforded by the act of 1880 to obtain the repayment of the excess of the price was exclusive of any other. Thus if the Secretary of the Interior erroneously construed the act and refused payment in a case where the claimant was justly entitled thereto, under its provisions, the claimant would be without redress, even though there were no dispute in regard to the facts, and the decision of the Secretary was a plain mistake in regard to the law. In this construction as to the jurisdiction of the Court of Claims, we are unable to agree.
The first section of the act of June 16, 1880, does not refer to such a case as this. Section 2 of that act reads in full as follows:
"In all cases where homestead or timber culture or desert land entries or other entries of public lands have heretofore or shall hereafter be cancelled for conflict, or where, from any cause, the entry has been erroneously allowed and cannot be confirmed, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money and excesses paid upon the same, upon the surrender of the duplicate receipt and the execution of a proper relinquishment of all claims to said land, whenever such entry shall have been duly cancelled by the Commissioner of the General Land Office, and in all cases where parties have paid double minimum price for land which has afterwards been found not to be within the limits of a railroad land grant, the excess of one dollar and twenty-five cents per acre shall in like manner be repaid to the purchaser thereof, or to his heirs or assigns."
Section 3 authorizes the Secretary of the Interior to make the payments provided for in the act out of any money in the Treasury not otherwise appropriated, and by section 4 the Secretary is authorized to draw his warrant on the Treasury in order to carry the provisions of the act into effect.
The portion of section 2, which is in italics, is the part of the act upon which this claim is founded. the question is whether the Court of Claims has jurisdiction in this case upon the facts found.
By the act of March 3, 1887, c. 359, 24 Stat. 505, the Court of Claims is given jurisdiction to hear and determine, among other things, all claims founded upon any law of Congress. As the claim in this case is founded upon the law of Congress of 1880, it would seem that under this grant of jurisdiction the Court of Claims had power to hear and determine the claim in question. The act of 1887 was not, however, the first act giving jurisdiction to the Court of Claims in regard to a lws of Congress. It had the same power when the case of Nichols v. United States, 7 Wall. 122, was decided, and a question of jurisdiction arose in that case. It there appeared the Nichols & Company were merchants in New York, and they made in 1847 an importation from abroad upon which duties were imposed on the quantity invoiced. The importation consisted of casks of liquor, and a portion of the liquor had leaked out during the voyage, and was thus lost, and consequently was never imported in fact into the United States. Notwithstanding these circumstances Nichols & Company paid the duties as imposed under the invoice, and without any deduction for leakage, and made no protest in the matter. An act of Congress of February 26, 1845, provided that no action should be maintained against any collector to recover duties paid unless a protest had been made in writing and signed by the claimant at the time of the payment. Where a protest had been made the importer could thereafter bring a suit against the collector for a recovery of the money so paid, and the suit would be tried in due course of law. The importers having ...