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held by them, whether in the regular or volunteer service, at the time such wounds were received."

It was within the power of Congress to change the rank here spoken of, and this it did by the act of 1875, which substitutes for "the full rank of the command held by them" the "actual rank held by them," and which embraces only "those now borne on the retired list, placed upon it on account of wounds received in action." Wood v. United States, 107 U.S. 414, 417. Under this act officers of twenty-five years' service at the date of their retirement, and officers who had lost an arm or leg or had an arm or leg permanently disabled, or both eyes, were not subject to be considered as retired upon the actual rank held by them when wounded, as provided in the first part of the section; and no retired officer was affected by the act who had been or might be retired on the rank actually held by him at the time of such retirement; and all officers mentioned in the first part of the section, or of twenty-five years' service, or who had lost an arm or leg, etc., could accept appointment in the diplomatic or consular service, notwithstanding 2 of the act of March 30, 1868, or § 1223 of the Revised Statutes, as we think the words "every such officer now borne on the retired list shall be continued thereon" refer to all officers previously mentioned in the section, and the provision in this respect shows that up to March 3, 1875, § 2 of the act of 1868 applied to officers on the retired list as well as those in active service.

Sections 1763, 1764, and 1765 of the Revised Statutes are as follows:

"Sec. 1763. No person who holds an office, the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law.

"Sec. 1764. No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any officer or

Opinion of the Court.

clerk may be required to perform, unless expressly authorized by law.

"Sec. 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation."

Whether by the order of the Secretary of War, July 3, 1878, the claimant's name was properly restored to the retired list we are not called upon to determine in this case, because even were that so we do not think his petition can be sustained.

General Badeau received as consul general at London an annual salary of seventy-five hundred dollars, and at Havana, of six thousand dollars, as fixed by law, and was expressly inhibited from receiving any additional salary, allowance, pay, or compensation for discharging the duties of any other office unless expressly authorized by law, of which there is no pretence in this case. It has been decided that a person holding two offices or employments under the government, when the services rendered or which might be required under them, were not incompatible, is not precluded from receiving the salary or compensation of both. Converse v. United States, 21 How. 463; United States v. Brindle, 110 U. S. 688. But the Treasury Department did not apparently regard this case as falling within that exception, and we agree with that conclusion. United States v. Shoemaker, 7 Wall. 338; Stansbury v. United States, 8 Wall. 33; Hoyt v. United States, 10 How. 109, 141.

Under the act of 1875 retired officers situated as therein described, are so far taken out of the operation of the act of 1868 as not to be held, if they accept or hold diplomatic or consular appointment, to have resigned their places in the army; but this does not change the general policy of the law, and does not entitle them to pay as army officers during the period of time when they are absent from their country in the discharge of continuous official duties inconsistent with subjection to the

Syllabus.

rules and articles of war, and the other incidents of military service. Notwithstanding § 1223, such officers, when in the diplomatic or consular service, may still be borne on the retired list, but cannot receive double compensation.

Nor can we disturb the judgment adverse to the counterclaim. As between individuals, where money has been paid under a mistake of law, it cannot be recovered back, but it is denied that this rule is applicable to the United States, upon the ground that the government is not bound by the mistakes of its officers, whether of law or of fact. United States v. Kirkpatrick, 9 Wheat. 720; United States v. Bank of Metropolis, 15 Pet. 377; McElrath v. United States, 102 U. S. 426. But inasmuch as the claimant, if not an officer de jure, acted as an officer de facto, we are not inclined to hold that he has received money which, ex æquo et bono, he ought to return.

He was paid as a military officer from December 6, 1869, to the 21st of February, 1870, and for the time from February 21, 1870, to April 30, 1870, and for about fourteen months, beginning in September, 1881, and ending in November, 1882. After May 19, 1869, he was employed in a diplomatic or consular capacity, except during the above specified periods, and the implication from the findings is that he was paid for those periods, because he was actually rendering service, whether subject to assignment thereto or not.

The judgment of the Court of Claims is

MR. JUSTICE MILLER dissented.

Affirmed.

UNITED STATES v. CUMMING.

CUMMING v. UNITED STATES.

APPEALS FROM THE COURT OF CLAIMS.

Nos. 723, 724. Submitted January 4, 1889. - Decided April 22, 1889.

Congress enacted that A B and C D "be permitted to sue in the Court of Claims, which court shall pass upon the law and facts as to the liability

Opinion of the Court.

of the United States for the acts of its officer" E F, ... collector of internal revenue” etc., “and this suit may be maintained, any statute of limitation to the contrary notwithstanding." Held, that this was a waiver of the defence based upon the statute of limitations, but not a waiver of the defence based on the general principle of law that the United States are not liable for unauthorized wrongs inflicted on the citizen by their officers while engaged in the discharge of official duties.

THE case is stated in the opinion.

Mr. Assistant Attorney General Howard for the United States.

Mr. Michael Jacobs, Mr. Leonard Myers and Mr. David McAdam for Cumming and others.

MR. JUSTICE HARLAN delivered the opinion of the court.

These are appeals from a judgment against the United States in favor of Joseph M. Cumming and Hamilton J. Miller, surviving members of the late firm of J. M. Cumming & Co., formerly manufacturers, distillers, vendors and exporters of whiskeys and alcohols, for the sum of thirty-six thousand dollars, as the damages sustained by that firm in consequence of certain acts of Joshua F. Bailey, collector of internal revenue for the fourth internal revenue district of New York, and of other officers who served under or with him. The amount for which the plaintiffs asked judgment was $1,635,753.

The suit was brought under the authority of the following act of Congress, approved February 26, 1885, 23 Stat. 639, c. 167.

"AN ACT for the relief of Joseph M. Cumming, Hamilton J. Miller and Wiliam McRoberts.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Joseph M. Cumming, Hamilton J. Miller and William McRoberts, late copartners in the business of commission merchants and bonded warehousemen in the city of New York, be permitted to sue in the Court of Claims; which court shall pass upon the law and facts as to the liability of the United

Opinion of the Court.

States for the acts of its officer, Joshua F. Bailey, by reason of the seizure, detention and closing up of the commission houses and bonded warehouses of said copartners, for the breaking up and interruption of their said business, and for the seizure and detention of the property, books and papers in and connected with said business, by Joshua F. Bailey, collector of internal revenue for the fourth internal revenue district of said State or by said Bailey and other internal revenue officers. The United States shall appear to defend against said suit, and either party may appeal to the Supreme Court as in ordinary cases against the United States in said court; and said suit may be maintained, any statute of limitation to the contrary notwithstanding. "Approved, February 26, 1885."

It is evident that Congress intended to open the doors of the Court of Claims to the plaintiffs, so far as to permit them to sue the government, unembarrassed by any defence of the statute of limitations, and to obtain an adjudication, based upon "the law and facts," as to the liability of the United States for the wrongs of which complaint is made. In other words, the jurisdiction of the Court of Claims was so enlarged as to embrace this particular demand and to authorize such judg- . ment as, under all the evidence, would be consistent with law. Here, however, we are met with the suggestion, that there is a general principle, applicable, as this court said, in Gibbons v. United States, 8 Wall. 269, 275, to all governments, which "forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizen, though occurring while engaged in the discharge of official duties." Did Congress intend to abrogate this principle so far as the demands of the present plaintiffs are concerned? Did it invest the Court of Claims with jurisdiction to render a judgment against the United States upon its appearing that the revenue officers transcended the authority conferred upon them by law, or had exercised their authority in such manner as made them personally liable in damages to the plaintiffs? There would be some ground for an affirmative answer to these questions if the statute had not required the court to pass upon both the law and the facts "as to the