Opinion of the Court.

topped to consider the question of title by the recitals in the act of Congress of January 17, 1887, 24 Stat. 358, c. 21, referring this claim to that court, in which the building in question is recognized as having been the property of the RussianAmerican Company. The act recites that "Whereas John H. Kinkead, of Nevada, and Samuel Sussman, of California, did purchase a certain building situated, etc., from the Russian-American Company, the owner of said building; and

"Whereas said building had been declared by the protocol of the transfer of Russian America to the United States to be private property; and

"Whereas thereafter the collector of customs of the United States did take from said Kinkead and Sussman a lease of a portion of said building, and entered thereupon; and

"Whereas afterwards General Jefferson C. Davis did seize the whole of said building, on the ground that the same was the property of the United States, notwithstanding the commissioner appointed to ascertain private property had certified the same to be private property:

"Therefore be it enacted,

is hereby, conferred on the Court of Claims to hear the claims, etc., for the rent and value of certain buildings

alleged by them to have been acquired by virtue of purchase from the Russian-American Company, upon the evidence already filed in said court, and such additional legal evidence as may be hereafter presented on either side; and if said court shall find that said parties acquired a valid title to said buildings respectively alleged to have been purchased by them, said court shall award said parties a fair and reasonable rent," etc.

In other words, the Court of Claims is required to find, first, whether the petitioners acquired a valid title; second, what shall be deemed a fair and reasonable rent; third, a suitable indemnity for the buildings themselves. Now, as the question whether the petitioners had a valid title to these buildings depended, not upon the fact of purchase from the RussianAmerican Company, which was admitted in the first recital of

Opinion of the Court.

the statute and never denied by any one, but upon the title of the Russian-American Company, and its right to convey, which had been called in question by the refusal of the Secretary of the Treasury to allow the petitioners' claim for rent, it is impossible that Congress could have intended by the recital to estop the Court of Claims from passing upon the very question referred to it for judicial determination. Petitioners assert that the whole object of the act was to permit the Court of Claims to pass upon the reasonableness of the rent and the value of the building. This theory, however, is not only wholly inconsistent with the enacting words, but with the position assumed by the officers of the government prior to the enactment in question. Indeed, there had been no dispute between the parties as to the amount of the rent; but there had been a seizure of the property by a military officer of the United States under express directions of the Secretary of War, and a total repudiation by the Secretary of the Treasury of the act of Ketchum, collector of customs, in assuming to lease this building, and a denial of any claim for rent. In the face of these proceedings it is wholly improbable that Congress should have admitted the ownership of the RussianAmerican Company, which was the question upon which the liability of the government wholly depended. Petitioners insist that the Court of Claims should have accepted the preamble as a correct recital of the fact, and should have determined, first, whether the petitioners had acquired the building in controversy by virtue of purchase from the Russian-American Company; and, second, whether the petitioners had acquired a valid title to said building. The fact that Kinkead and Sussman had purchased the building was as distinctly set forth in the first recital as that the Russian-American Company was the owner, and if it were unnecessary for it to determine one question it was equally so to determine the

other.

It is well settled, however, that a mere recital in an act, whether of fact or of law, is not conclusive unless it be clear that the legislature intended that the recital should be accepted as a fact in the case. Endlich on Statutes, § 375. It was

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Opinion of the Court.

stated by the court in Branson v. Wirth, 17 Wall. 32, 44, that "whilst the recital of public acts are regarded as evidence of the facts recited, it is otherwise, as we have seen, with reference to private acts. They are not evidence except against the parties who procure them."

We are referred, however, to the case of the United States v. Jordan, 113 U. S. 418, as sustaining a contrary doctrine. In this case an act of Congress provided "that the Secretary of the Treasury be, and he is hereby, authorized and directed to remit, refund, and pay back, out of any moneys in the Treasury not otherwise appropriated, to the following-named citizens of Tennessee: the amount of taxes assessed upon and collected from the said named persons, contrary to the provisions of the regulations issued by the Secretary of the Treasury," etc. Jordan was one of the parties named in the act. The Secretary of the Treasury having construed the act to mean only that such sums should be refunded as were collected from the persons named contrary to the provisions of the regulations issued by the Secretary of the Treasury, this court held that the statute did not admit of that interpretation, nor leave open any question for the court or for the accounting officers of the Treasury, except the identity of the claimants with the persons named in it. "Although the act," said Mr. Justice Blatchford, "speaks of the sums as being 'the amount of taxes assessed upon and collected from the said named persons, contrary to the provisions of the regulations' named, there is no indication of any intention to submit to any one the determination of the question whether the taxes in any case were collected contrary to the provisions of such regulations, or of the question how those provisions are to be construed."

It needs no argument to show that there is a wide distinction between an act directing a particular thing to be done, and an act reciting the existence of a certain fact which had long been a matter of dispute, and which the Court of Claims was authorized by the act to pass upon and determine.

Counsel have also seen fit to lay before us the report of a Senate committee accompanying the bill, which afterwards

Dissenting Opinion: Shiras, Field, JJ.

became the act of January 17, 1887, which report was in favor of the justice of the claim. In accordance with this report the committee submitted a bill conferring jurisdiction upon the Court of Claims to hear this claim upon the evidence already filed and such additional legal evidence as might be presented, and directing said court to award a fair and reasonable rent, etc. The bill, however, was amended upon the floor of the Senate by inserting the words, "if said court shall find that said parties acquired a valid title to said buildings respectively alleged to have been purchased by them," thus evincing a clear intention on the part of the Senate to require the petitioners to satisfy the court of the validity of their title to the building. We think it clear there is nothing in the recital of the act which even throws a doubt upon the intention of Congress to require the court to be satisfied of this fact.

The truth is that the whole case of the claimants depends upon the question whether the government was bound by the proceedings of the commissioners in the execution of the treaty. As we have already expressed the opinion that they possessed no power to vary the language of the treaty or to determine questions of title or ownership, it results that their action was not binding upon the government.

The judgment of the court below is, therefore,

Affirmed.

MR. JUSTICE SHIRAS, with whom concurred MR. JUSTICE FIELD, dissenting.

In the case of the United States v. Percheman, 7 Pet. 51, 86, Chief Justice Marshall said:

"It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated

Dissenting Opinion: Shiras, Field, JJ.

and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property remain undisturbed. If this be the modern rule, even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?"

Upon this view of the subject it might be justly expected that when, in 1867, a treaty for the cession of the dominions of Russia in America was concluded between the United States and the Emperor of Russia, the rights of private prop erty would remain undisturbed. Nor would that just expectation be disappointed; for, on reading the treaty, we find explicit provisions, preserving and excluding from the operation of the cession private property. It, however, appears that portions of the ceded territory had been occupied by an association or company known as the Russian-American Company, and which seems to have claimed and exercised an almost despotic control over the sparse population, whether native or Russian, and also to have been possessed, by grant from the Russian government, of certain franchises and privileges, the precise nature and extent of which are not disclosed. Aware of the existence of this company, and apparently fearful lest troublesome contentions as to such special privileges and franchises might afterwards arise, the government of the United States insisted on the insertion in the treaty of an explicit article, providing that the cession of territory and dominion should be declared to be free and unincumbered by any reservations, privileges, franchises, grants, or possessions by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties except merely private individual property holders.

The fourth article of the treaty provided that the Emperor of Russia should appoint an agent or agents for the purpose of formally delivering to a similar agent or agents, appointed on behalf of the United States, the territory, dominion, property, dependencies, and appurtenances which were ceded, and for doing any other act which might be necessary in regard thereto.