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has laid down some rules, defining the circumstances under which such resort may be had. They are as follows:

(1) The Revised Statutes of the United States must be treated as a legislative declaration by congress of the statute law on the subjects which they embrace, on the first day of December, 1873; and when the meaning is plain, the courts cannot look to the statutes which have been revised to see if congress has erred in its revision. (2) But when it becomes necessary to construe language used in the revision which leaves a substantial doubt of its meaning, the original statute may be resorted to for ascertaining that meaning." (3) Under the rule that the original statute may be resorted to for the purpose of ascertaining the meaning of the revision, where there is a substantial doubt as to the meaning of revision, the title of the original act may be resorted to, even if the text of the revision be the same as the original.42 (4) It will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such intention be clearly expressed.43 (5) Upon a revision of statutes, where the law antecedently to the revision was settled, either by clear expressions in the statutes, or adjudications on them, the mere change of phraseology will not be deemed or construed a change of the law, unless such phraseology evidently purports an intention in the legislature to work a change."

§ 631. Suits against consuls and vice-consuls.-The ninth section of the original judiciary act declares that the district courts "shall also have jurisdiction exclusively of the courts of the several states, of all suits against consuls or vice-consuls, except for offenses above the description aforesaid;" the exception referring to a previous provision in the same section which declares "that the district courts shall have, exclusively of the courts of the several states, cognizance of all crimes and offenses that shall be cognizable under the authority of the

41 United States v. Bowen, 100 U. S. 508 (25:631); Victor v. Arthur, 104 U. S. 498 (26:633); Arthur v. Dodge, 101 U. S. 36 (25: 949); Cambria Iron Co. v. Ashbum, 118 U. S. 57 (30:61); United States v. Averill, 130 U. S. 339 (32:978).

42 Meyer v. Western Car Co., 102 U. S. 1 (26:59).

4 United States v. Ryder, 110 U. S. 729 (28:308).

44 McDonald v. Hovey, 110 U. S. 619 (28:269).

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United States, committed within their respective districts, or upon the high seas, where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars or a term of imprisonment not exceeding six months,

is to be inflicted.'' 45 The constitutional grant to the supreme court of original jurisdiction "in all cases affecting ambassadors, other public ministers and consuls" is not exclusive, and the legislation of congress has been effectual to vest in the district courts criminal and civil jurisdiction in cases against consuls and vice-consuls.46

§ 632. Suits against the government under "The Tucker Act." The district courts are, by the Tucker Act, given jurisdiction, concurrent with the court of claims, to hear and determine all claims founded upon the constitution of the United States or any law of congress, except for pensions, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States were suable, where the amount of the claim does not exceed one thousand dollars; and the circuit courts are given concurrent jurisdiction in all such cases where the amount of such claim exceeds one thousand dollars and does not exceed ten thousand dollars. But it is provided in the act that it shall not be construed as giving to either of said courts jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as war claims, or to hear and determine other claims which have heretofore been rejected, or reported. on adversely by any court, department. or commission authorized to hear and determine the same. And by an amendment of the act, it is provided that no suit against the government of the United States, brought by any officer of the United States to recover fees for services alleged to have been performed for the United States, shall be allowed under the act

451 U. S. Stat. at L. ch. 20, sec. 9, pp. 73-79; U. S. Rev. Stat. sec. 563, cl. 17; 4 Fed. Stat. Anno. 235, 236.

46 Bors v. Preston, 111 U. S. 252,

263 (28:419); Gittings v. Crawford, Taney 1, Fed. Cas. 5,465; Ex parte Baiz, 135 U. S. 403, 432 (34: 222).

unless an account of said fees shall have been rendered and finally acted upon according to the provisions of the act of July thirty-first, eighteen hundred and ninety-four (chapter one hundred and seventy-four, twenty-eight Statutes at Large, page one hundred and sixty-two), unless the proper accounting officer of the treasury fails to finally act thereon within six months after the account is received in said office; and that the jurisdiction conferred by the act upon the circuit and district courts shall not extend to cases brought to recover fees, salary, or compensation for official services of officers of the United States, or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof.47

§ 633. Same-Set-offs and counter-claims.-In all suits mentioned in the section next preceding, over which the circuit and district courts are given jurisdiction, the said courts have, also, jurisdiction of all set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the government of the United States against any claimant against the government in said courts.48

§ 634. Same-Limitation of suits-Six of suits-Six years.-No suit against the government of the United States shall be allowed under the Tucker Act, unless the same shall have been brought within six years after the right accrued for which the claim is made."

49

§ 635. Same-Cases "sounding in tort" excluded by "The Tucker Act."-The "Tucker Act" clearly excludes from judicial cognizance any claim against the United States for damages in a case "sounding in tort." The United States cannot be sued without their consent, and they have never permitted themselves to be sued, for the torts, misconduct, misfeasance or laches of their officers or employes; and the settled distinction between actions ex contractu and actions ex delicto cannot be evaded by framing pleadings upon a pretended theory of waiving the tort and suing on an implied contract.50

47 24 U. S. Stat. at L. ch. 359, pp. 505-508; 30. U S. Stat. at L. ch. 503, pp. 494, 495 and ch. 546, sec. 2, pp. 649, 650; 28 U. S. Stat. at L. ch. 174, p. 162; 2 Fed. Stat. Anno. 80-88; U. S. Comp. Stat. 1901, pp. 752-758.

48 24 U. S. Stat. at L. ch. 359, p. 505; 2 Fed. Stat. Anno. 81; U. S. Stat. Comp. 1901, pp. 752, 753.

49 24 U. S. Stat. at L. ch. 359, sec. 1, p. 505; 2 Fed. Stat. Anno. 81; U. S. Comp. Stat. 1901, p. 752. 50 Bigby v. United States, 188 U.

§ 636. Same-Four classes of cases contemplated by "The Tucker Act."-The first section of the act contemplates four distinct classes of cases, viz: (1) Those founded on the constitution or any law of congress, with an exception of pension cases; (2) cases founded on any regulation of an executive department; (3) cases of contract, express or implied, with the government; and (4) actions for damages, liquidated or unliquidated, in cases not sounting in tort. The words "not sounding in tort" are in terms referable only to the fourth class of

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§ 637. Same Same-Implied contracts.-The rule deducible from the adjudicated cases is, that whenever the government appropriates property which it does not claim as its own, but concedes it to be the property of an individual, it does so under an implied contract that it will pay to the owner the value of the property so appropriated, and a suit may be maintained for it under the act now being considered.52 An action to recover back import duties illegally exacted and paid under protest is a case founded upon an act of congress within the meaning of the "Tucker Act," and is within the jurisdiction of the circuit and district courts, as courts of claims.58

§ 638. Same Suit by marshal to recover disbursements made to pay court bailiffs.—A suit by a United States marshal to recover from the United States money disbursed by him in paying for the services of bailiffs in the district and circuit courts, is not a suit "brought to recover fees, salaries or compensation for official services of officers of the United States" within the meaning of the section of the amendatory act of the "Tucker Act," and such suit is within the jurisdiction conferred by that act upon the circuit and district courts. Bailiffs are not officers of the United States, but are merely officers of the court.55

S. 400, 410 (47:519); Hill v. United States, 149 U. S. 593, 605 (37: 862; Schillinger v. United States, 155 U. S. 162, 180 (39:108).

51 Dooley v. United States, 182 U. S. 222, 243 (45:1074); United States v. Palmer, 128 U. S. 262, 272 (32:442); United States v. Lynah, 188 U. S. 445, 485 (47:539).

54

52 United States v. Lynah, 188 U. S. 445, 485 (47:539); United States v. Palmer, 128 U. S. 262, 272 (32:442).

53 Dooley v. United States, 182 U. S. 222, 243 (45:1074).

54 United States v. Swift (C. C. A.), 139 Fed. R. 225, 230.

55 United States v. McCabe, 129

§ 639. Same-Suit for salvage where the government is benefited by the salvage service.-Jurisdiction is conferred by the "Tucker Act" of a suit for salvage where the government has been benefited by the salvage service; and, where the gov ernment has a lien on merchandise for the payment of custom duties, and those duties have been paid under a statute which requires that they shall be refunded in the event of the destruction, in whole or in part, of the merchandise, by accidental fire or other casualty, while they remain in the custody of the officers of the customs in any public or private warehouse under bond, or while in the custody of the officers of the customs and not in bond, or while within the limits of any port of entry, and before the same have been landed under the supervision of the officers of the customs, and salvage services are rendered which prevent the destruction of the merchandise by accidental fire under the circumstances enumerated in the statute, the government is held to be benefited by such services, and the court has jurisdiction of a suit to recover for them.5

§ 640. Jurisdiction of judicial proceedings by the federal government to condemn private property for public use.-The federal government is, within the sphere of action appropriated to it by the constitution, sovereign, independent, and supreme, and is, by virtue of its sovereignty, and as an attribute thereof, vested with the full and complete power of eminent domain, which it may exercise, within constitutional limits, not only within the territories and the District of Columbia, which are subject to its exclusive jurisdiction, but also within the several states, without their concurrence or consent, whenever it may be necessary or appropriate in the exercise of any power vested in it by the constitution;5s and the district.

Fed. 708, 64 C. C. A. 236; United States v. Swift, 139 Fed. R. 225, 230.

56 United States V. Cornell Steamboat Co. (C. C. A.) 137 Fed. R. 455, 460; United States v. Morgan, 99 Fed. R. 570, 39 C. C. A. 653.

57 Ableman v. Booth, 21 How. 523 (16:175); United States v. Tarbell, 13 Wall. 397 (20:597).

58 Kohl v. United States, 91 U. S. 367, 379 (23:449); United

States v. Gettysburg Electric R. Co., 160 U. S. 668, 686 (40:579); Chappell v. United States, 160 U. S. 499, 514 (40:510); Harris v. Elliott, 10 Pet. 25 (9:333); United States v. Jones, 109 U. S. 513 (27: 1015); Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525-531 (29:264, 266); Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 656 (34:295, 301); Monongahela Nav. Co. v. United States 148 U. S. 312 (37:463); Luxton v. North River

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