to the postmaster general by the administrator for a review and readjustment of decedent's salary as postmaster aforesaid, under the provisions of the act of March 3, 1883 (22 Stat. 487). December 23, 1885, said salary was readjusted, and the sum of $2,892.84 found due said decedent's estate. August 4, 1886, a sum of money was appropriated by congress to pay this and similar allowances. 24 Stat. 307, 308. “(4) March 4, 1887, decedent's postal account was audited by the auditor for the post-office department, who charged his account with the aforesaid judgment and interest thereon from July 5, 1870, to August 4, 1886 (the date of appropriation), and costs of suit, the total thereof being the sum of $2,296.77, and deducted this sum from the amount of salary credited to said account, showing a balance of $596.07.

"June 20, 1887, the United States attorney for the aforesaid district was instructed to satisfy said judgment, which was accordingly done July 25, 1887.

"(5) The sum of $596.07 was paid plaintiff, who gave the following receipt:

"W. J. Verdier, Administrator.'" Upon these facts, the court found, as a conclusion of law, that the petitioner was entitled to recover in the sum of $1,233.57 (28 Ct. Cl. 268), for which amount judgment was entered, and the United States appealed.

Asst. Atty. Gen. Dodge, for the United States. Harvey Spalding, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

* The contest in this case is really over a question of interest. Upon the termination of his services as postmaster, Verdier was found, upon the face of his accounts, to be indebted to the government. Suit was brought against him upon his bond, and a verdict obtained July 5, 1870, for $1,063.20, which was subsequently set aside; but the action ultimately resulted in a judgment against him, rendered January 25, 1871, in the sum of $1,095.83.

By Rev. St. § 966, "interest shall be allowed on all judgments in civil causes recovered in a circuit or district court * in all cases

where, by the law of the state in which such court is held, interest may be levied under process of execution on judgments recovered in the courts of such state; and it shall be calculated from the date of the judgment, at such rate as allowed by law on judgments recovered in the courts of such state." We see no reason why this section, or section 3624, fixing the rate of Interest upon delinquent accounts of public officers at 6 per cent., does not app'y to this case. Verdier was therefore properly charged with interest upon the judgment. Amis v. Smith, 16 Pet. 303.

By the act of July 1, 1864 (13 Stat. 335), the system which had theretofore prevailed of paying postmasters by a commission upon the re ceipts of their offices was changed; and postmasters were divided into five classes, and paid by a salary gauged by their compensation for the two consecutive years preceding the act. The classification of postmasters was determined by the postmaster general upon the basis of the commissions previously paid to them, and the exact amount of their salaries fixed within certain limitations provided by the act for each class. There was a further provision in the second section that the salary should be reviewed and readjusted by the postmaster general once in two years, upon the basis upon which the salary was originally fixed; but that such change should not take effect until the first day of the quarter next following the order for the same. This section was amended by the act of July 12, 1866 (14 Stat. 59, 60), by adding a proviso that, when the quarterly returns of any postmaster showed that the sal-; ary allowed was 10 per cent. less than it would* have been on a basis of commissions, the postmaster general should review and readjust under the provisions of the prior act.

It will be observed that these acts of 1864 and 1866 were both prospective in their operation. U. S. v. McLean, 95 U. S. 750. We must assume that when Verdier took office, July 1, 1866, his salary was fixed by the postmaster general, under the act of 1864; this being the date at which the first biennial term fixed by the act of 1864 expired. It would seem that no readjustment could then be made until the lapse of two years, or until July, 1868, unless, upon satisfactory representation, it was deemed expedient by the postmaster general. If a readjustment had been made under these acts, it would have operated prospectively only, and until April 30, 1869, when he ceased to serve as postmaster. Why a readjustment was not made does not appear. It may have been for the absence of quarterly returns, as there is no finding that such returns were made. It may have been by simple neglect of the postmaster general to comply with the law; but there is no evidence of his refusal to do so, and in any event the government would not be liable for his neglect in that particular. U. S. v. Kirkpatrick, 9 Wheat. 720; U. S. v. Sherman, 98 U. S. 565. It was not until 1883 that the postmaster general was authorized to readjust the compensation of postmasters, and to make such readjustments retrospective.

By the act of March 3, 1883 (22 Stat. 487), the postmaster general was authorized and directed to readjust the salaries of postmasters, whose salaries had not theretofore been readjusted under the act of 1866, "who had made sworn returns of their receipts and business for readjustment of salary" to the department, or who had "made quarterly returns in conformity to the then existing laws and regulations, showing that the salary allowed was ten per centum less than it would have been upon the basis of commissions," such readjustment to be made

00

in accordance with the act of 1866, and "to date from the beginning of the quarter succeeding that in which such sworn returns of receipts and business or quarterly returns were made; provided, that every readjustment of salary under this act shall be upon a written application signed by the postmaster or late postmaster or legal representative entitled to such readjustment."

Pursuant to this statute, application was made by the administrator of Verdier for a review and readjustment of his salary as postmaster; and on December 23, 1885, his salary was readjusted, and the sum of $2,092.84 found to be due his estate.

On August 4, 1886, an act was passed by congress (24 Stat. 307) appropriating a sum of money to pay this and similar allowances. Verdier's account was finally audited March 4, 1887. In this statement he was charged with the judgment and interest thereon from July 5, 1870, to August 4, 1886 (the date of the appropriation), the total being the sum of $2,296.77, and was credited with the amount of his readjusted salary and a balance of $596.07 found to be due him. This sum was subsequently paid, the receipt of petitioner's administrator taken for the amount, and the judgment against Verdier satisfied of record July 25, 1887. On September 28, 18 S, this petition was filed to recover the difference between the original verdict and the amount which was deducted from his readjusted salary upon final settlement.

By the act of 1883 no readjustment could be made, except upon the application of the postmaster; and, when that application was made in this case, the salary was for the first time readjusted. Until this time the debt was not liquidated. In fact, it would be more accurate to say that it did not exist. The argument is made that, as the readjusted salary was earned prior to the verdict against Verdier of July 5, 1870, he ought not to be charged with interest upon the judgment against him for the 16 years which elapsed from that time until August, 1886, when the act of congress appropriating money for the payment of readjusted salaries was passed; or, which is nearly the same thing, that the government should be charged with interest upon his readjusted compensation from the time he left the office. It would certainly seem to be equitable that, if the government were indebted to Verdier at the time it obtained judgment against him, it should not charge him with interest upon its judgment. But, interest being a matter of purely statutory regulation, we are bound to give or withhold it as the statute directs. By the judgment of the district court of South Carolina, Verdier became indebted to the government on January 25, 1871, in the sum of $1,095.83, and, as he did not pay the debt at the time, he was properly chargeable with interest. Rev. St. § 966. Upon the other hand, the government did not become a debtor to Verdier until his claim was liquidated; and by Rev. St. § 1091, no interest can be allowed upon any claim against the government up to the time of the rendition of judg

ment thereon by the court of claims, unless upon a contract expressly stipulating for the payment of interest. The theory upon which interest is claimed seems to be that the postmaster general was in fault for not having readjusted Verdier's salary under the act of 1866, and that Verdier ought not to be prejudiced by such default. The whole difficulty in the case, however, arises from the fact that there were claims upon both sides. Did the case of the government stand alone, there could be no doubt whatever that Verdier's estate would be properly chargeable with interest. Upon the other hand, if his accounts had been settled and paid at the expiration of his term, and a claim were now made under the act of 1883, it would not be claimed that the government would be chargeable with interest. The equity of petitioner's claim, if there be any, arises from the fact that, while interest was running against him on his judgment, the government was equitably his debtor. Were the case between private individuals, perhaps interest would be chargeable to both parties; but we are unable to see how the fact that there were mutual claims can authorize us to disregard the plain letter of the statutes. There is really no greater hardship in denying the petitioner interest than there would have been if he had not been a judgment debtor of the government.

An inherent vice of petitioner's argument is in the assumption that he and the government stand upon an equality with respect to interest. The truth is that, in its dealings with individuals,, public policy demands that the government; should occupy an apparently favored position. It may sue, but, except by its own consent, cannot be sued. In the matter of costs, it recovers, but does not pay, and the liability of the individual would not be affected by the fact he had a judgment against the government which did not carry costs. So, the statute of limitations may be pleaded by the government, but not against it; nor is it affected by the laches of its officers. U. S. v. Barker, 2 Wheat. 395; The Antelope, 12 Wheat. 546; U. S. v. McLemore, 4 How. 286; U. S. v. Boyd, 5 How. 29; U. S. v. Thompson, 98 U. S. 486; Simmons v. Ogle, 105 U. S. 271; U. S. v. Kirkpatrick, 9 Wheat. 720; U. S. v. Nicholl, 12 Wheat. 505; Gaussen v. U. S., 97 U. S. 584. Under the bankruptcy law, it was a preferred creditor, and its claims were paid even before the wages of operatives, clerks, or house servants. Rev. St. § 5101. In short, the equities which arise as between individuals have but a limited application as between the government and a citizen.

Nor is it strictly true to say that the government was indebted to Verdier at the date of its judgment against him. He had performed ser vices for which an indebtedness was subsequently voluntarily created by the government; but until the readjustment was made, the law im posed no obligation upon the government to pay him an increased salary. Verdier could not have availed himself of it as a set-off or counterclaim to his own debt to the government, and in fact it never became a debt until the claim

was liquidated, under the act of 1883. As was said by this court in U. S. v. McLean, 95 U. S. 750, 753: "The law imposes no obligation upon the government to pay an increased salary unless a readjustment has preceded it. And by the act of 1866 the postmaster general is not to readjust an existing salary unless the quarterly returns made show cause for it. Now, if it be conceded that the quarterly returns made on the last day of each quarter, beginning with June 30, 1871, made it the duty of the postmaster general to make a readjustment immediately on the receipt of the returns, still his readjustment was an executive act, made necessary by the law, in order to perfect any liability of the government. If the executive officer failed to do his duty, he might have been constrained by a mandamus. But the courts cannot perform executive duties, or treat them as performed when they have been neglected. They cannot enforce rights which are dependent for their existence upon a prior performance by an executive officer of certain duties he has failed to perform. The right asserted by the claimant rests upon a condition unfulfilled." In that case, as stated by Mr. Justice Miller in U. S. v. Vilas, 124 U. S. 86, 87, 8 Sup. Ct. 422, 423, this court held that the court of claims could not "perform the duty of readjusting the salary under the acts which conferred that power on the postmaster general, and that there was no legal liability against the United States for the amount claimed by him until that officer had readjusted the salary in accordance with those acts of congress." And in U. S. v. Vilas it was held that the statute did not contemplate a readjustment oftener than once in two years, as a legal duty or obligation on the part of the postmaster general.

Verdier's claim for interest in this case is based upon the assumption that the postmaster general neglected his duty in failing to readjust his salary. We have shown that, if he had performed his statutory duty, his action would have been prospective only, and would have covered but comparatively a short period of Verdier's services; but, however this may be, the government is not chargeable for his neglect in that particular.

It results that the judgment of the court below must be reversed, and the case remanded, with direction to dismiss the petition.

Mr. Justice GRAY did not hear the argument, and took no part in the decision of this case.

(164 U. S. 190)

WISCONSIN CENT. R. CO. v. UNITED STATES.

(November 16, 1896.) No. 21.

TRANSPORTATION OF MAILS-COMPENSATION-RE-
COVERY OF OVERPAYMENTS-READJUST-
MENT OF RATES.

1. Act June 3, 1856 (11 Stat. 20. c. 43), granting lands to the state of Wisconsin to aid in the construction of certain railroads, provided section 5) that "the United States mail shall be transported over said roads under the direc

tion of the postoffice department at such price as congress may by law direct," and that, "until such price is fixed by law, the postmastergeneral shall have the power to determine the same." Act May 5, 1864 (13 Stat. 66, c. 80), again granted lands to the state for three specified lines of road, expressly providing that the grant was made upon "the same terms and conditions" as the grant of 1856. The general subject-matter of all sections of the act of 1856 except section 5 was expressly re-enacted by act of 1864, such re-enactment being rendered necessary by certain changes in these sections. Held, that the "terms and conditions" referred to by the act of 1864 embraced the condition prescribed by section 5 of the act of 1856.

2. The act of the postmaster general in directing payment for transportation of the mails, under statutes providing the rate and basis thereof, is an executive, and not a judicial, act. and is not conclusive in a case involving the settlement of such accounts.

3. Rev. St. § 4057, relative to the recovery of funds of the post-office department wrongfully paid out, provides, among other cases, that where such funds have been paid "by the mistake, collusion, or misconduct of any officer or other employé in the postal service, the postmaster-general shall cause suit to be brought to re cover such wrong or fraudulent payment." Held, that the word "mistake," as here used, includes the erroneous construction or application of a statute, and therefore where money has been illegally paid, by reason of misconstruction of the law, and the postmaster general has money of the recipient in his possession, he need not pay it over, and then sue for the illegal payments, but he may hold it subject to the decision of the court in a suit by the claimant.

4. Act July 12, 1876 (19 Stat. 78, c. 179), anthorizing the postmaster general to readjust the rates of compensation for the transportation of the mails, provides (section 13) that "railroad companies whose railroad was constructed in whole or in part by a land grant made by con gress on the condition that the mails should be transported over their road at such price as congress should by law direct, shall receive only eighty per centum of the compensation authorized by this act." A railroad constructed by the aid of a land grant made in 1864 on the above condition was paid full rates for carrying the mails for a portion of the time prior to January 8, 1884. On this date the postmaster general directed that from July 1, 1883, the compensation should be reduced to the rate fixed by the act of 1876, and also restated the account for carrying the mails prior to July 1, 1883, and deducted out of moneys earned since the latter date the excess above 80 per cent. paid for the prior period. Held, that the railroad company was not entitled to recover the sum so deducted. Mr. Justice Peckham dissenting.

Appeal from the Court of Claims.

An act of congress of March 3, 1873 (17 Stat. 556, c. 231), prescribed the rates of compensation for the transportation of the mails on the basis of the average weight;2 and by an act of July 12, 1876 (19 Stat. 78.* c. 179), the compensation was directed to be readjusted by the postmaster general as specified on and after July 1, 1876. Section 13 of this act provided "that railroad companies whose railroad was constructed in whole or in part by a land grant made by congress on the condition that the mails should be transported over their road at. such price as congress should by law direct shall receive only eighty per centum of the compensation authorized by this act."

By an act approved June 3, 1856 (11 Stat.

20, c. 43), congress granted to the state of Wisconsin lands to aid in the construction of certain railroads northward and northwestward in said state, ultimately reaching the west end of Lake Superior; the land granted being every alternate odd-numbered section for six sections in width on each side of the roads, respectively. Section 5 of this act provided: "That the United States mail shall be transported over said roads, under the direction of the post office department, at such price as congress may, by law, direct: provided, that until such price is fixed by law, the postmaster-general shall have the power to determine the same." Some or all of the roads contemplated in this act not having been constructed, congress, by act of May 5, 1864 (13 Stat. 66, c. 80), again granted lands to the state of Wisconsin for three different general lines of railroad, the line covered by section 3 of the act being the one in controversy. By this

act alternate odd-numbered sections for ten sections in width, instead of six, were granted, "upon the same terms and conditions as are contained in the act granting lands to said state to aid in the construction of railroads in said state, approved June 3, 1856."

The two acts in parallel columns, the words in each and not in the other being priated in italics, are as follows:

Act of June 3, 1856.

*Section 1. That there be, and is hereby, granted to the state of Wisconsin for the purpose of aiding in the construction of a railroad from Madison, or Co. lumbus, by the way of Portage City to the Saint Croix River or Lake between townships twenty-five and thirtyone, and from thence to the west end of Lake Superior; and to Bayfield; and also from Fond du Lac on Lake Winnebago, northerly to the state line, every alternate section of land designated by odd numbers for six sections in width on each side of said roads, respectively.

Act of May 5, 1864. Sec. 1. [This section grants land to aid in the construction of a railroad from Saint Croix River or Lake to Lake Superior.]

*Sec. 2. [This section grants land to aid in the construction of a railroad from Tomah to Saint Croix River or Lake.]

Sec. 3. And be it further enacted, that there be, and is hereby, granted to the state of Wisconsin, for the purpose of aiding in the construction of a railroad from

Portage

City, Berlin, Doty's Island, or Fond du Lac, as said state may determine, in a northwestern direction, to Byfield, and thence to Superior, on Lake Superior, every alternate section of public land, designated by odd numbers, for ten sections in width on each side of said road, upon the same terms and condi tions as are contained in the act granting lands to said state to aid in the construction of railroads in said state, approved June three, eighteen hundred and fifty-six. But in

Provided, that the lands to be so located shall in no case be further than fifteen miles from the line of the roads in each case, and selected for and on account of said roads:

Provided, further, that the lands hereby granted shall be exclu sively applied in the construction of thas road for which it was granted and selected, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatso

ever:

And

or

case it shall appear that the United States have, when the line or route of said road is definitely fixed, sold, reserved, or otherwise disposed of any sections or parts thereof, granted as, aforesaid, or that the right of pre-emption or homestead has attached* to the same, that it shall be lawful for any agent or agents of said state, appointed by the governor thereof, to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tier of sections above specified, as much public land in alternate sections, parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the right of pre-emption or homestal has attached as aforesaid, which lands (thus selected in lieu of those sold and to which the right of pre-emption or homestead has at tached as aforesaid, together with sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by said state, or by the company to which she may transfer the same, for the use and purpose aforesaid: provided, that the lands to be so located shall in no case be further than twenty miles

from the line of said road.

provided fur- Sec. 6. And be it fur ther, that any and all ther enacted, that any lands reserved to the and all lands reserved to United States by any act the United States by any of congress for the pur- act of congress for the pose of aiding in any ob- purpose of aiding in any ject of internal improve- object of internal imment, or in any manner provement, or in any for any purpose what manner for any purpose soever, be, and the same whatsoever, and ail are hereby, reserved to mineral lands be and the United States from the same are hereby re the operation of this act, served and excluded except so far as it may from the operation of be found necessary to lo- this act, except so far as cate the route of said it may be found necesrailroads through such sary to locate the route reserved lands, in which of such railroads case the right of way through such reserved

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