181 U.S.

500
21 S.Ct. 718
45 L.Ed. 971

UNITED STATES, Appt.,

v.
WILLIAM EDMONSTON.
No. 353.
Submitted April 8, 1901.
Decided May 13, 1901.

This is an appeal from a judgment of the court of claims in favor of the

appellee and against the United States for $200, being the amount he was
overcharged in the purchase of a quarter section of land. The evidence
disclosed the following facts: The claimant on March 11, 1891, filed in
the local land office at Ashland, Wisconsin, a statement, under the preemption laws, of his intention to preempt a tract of 160 acres. On
September 16, 1891, he gave public notice, as required by law, of his
purpose to make final proof, and, in pursuance of such notice, on
November 9, 1891, proved up before the register and receiver of the land
office the necessary settlement and improvement.
Findings 2, 3, 4, and 5 are as follows:
'2. The claimant, having established his was required to pay for the same
to the United States the sum of $400, being at the rate of $2.50 per acre
for 160 acres, and he did pay the United States that amount for the land.
'3. The land inhabited and improved by the claimant, and paid for by him
on the 11th of November, 1891, had been raised in price to $2.50 per acre,
and put in the market prior to January, 1861, by reason of the grant of
alternate sections to aid in the construction of railroads, and was of an
alternate section reserved to the United States along the line of a railroad
within the limits granted to the state of Wisconsin by the act approved
June 3, 1856 (11 Stat. at L. 20, chap. 44), to aid in the construction of
railroads in that state, now known as the grant to the Chicago, St. Paul,
Minneapolis, & Omaha Railway Company, and it was never alternate
reserved land to the United States along the line of railroads within the

limits granted by any other act of Congress to any other railway company.
'4. At the time said cash entry was made and said money paid to the
receiver at the local land office at Ashland, Wisconsin, it does not appear
that the claimant made any protest or objection to said payment, nor
asserted any right to purchase the land at a less price than that which he
was called upon to pay for said land.
'5. Said land had been raised to $2.50 per acre and put on the market prior
to January, 1861, by reason of the grant of alternate sections for railroad
purposes, said land having been thus offered on June 14, 1856.'
It also appears that the claimant applied to the land office for the
repayment of half of the purchase money, which was refused.
Messrs. Assistant Attorney General Pradt and George Hines Gorman for
appellant.
Messrs. Harvey Spalding and E. W. Spalding for appellee.
Mr. Justice Brewer delivered the opinion of the court:

On June 16, 1880, an act was passed (21 Stat. at L. 287, chap. 244), in 2 of
which is the following clause:

'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.'

Another act passed the day before, June 15, 1880 (21 Stat. at L. 237, chap.
227), contained this provision:

'The price of lands now subject to entry which were raised to two dollars and
fifty cents per acre and put in market prior to January, 1861, by reason of the
grant of alternate sections for railroad purposes, is hereby reduced to one dollar
and twenty-five cents per acre.'

Medbury v. United States, 173 U. S. 492, 43 L. ed. 779, 19 Sup. Ct. Rep. 503,
arose under the clause first quoted, and it was held that it did not apply to lands
which were in fact within the limits of a land grant, but which had been

forfeited on account of the failure of the railroad company to build its road, but
only to cases in which there had been a mistake in the first instance as to the
location of the land, the court saying (p. 500, L. ed. 783, Sup. Ct. Rep. 506):
6

'That act plainly referred to the case of a mistake in location at the time when
the entry was made. Where the parties supposed that the land entered was
within the limits of the land grant, and where subsequently it is discovered that
the lands were not within those limits, that a mistake had been made, and that
the party had not obtained the lands which he thought he was obtaining by
virtue of his entry, then the act of 1880 applies.

'Here no mistake whatever has been made. The lands were within the limits of
the land grant at the time of the entry, and so remained for many years and up
to the time of the act of forfeiture by Congress.

The act of June 16, 1880, may therefore be put out of consideration. By the act
of June 15, however, the price of this tract was reduced from $2.50 to $1.25 per
acre. The claimant paid the $2.50 without protest or question. He paid more
than the law required him to pay. Can he recover the excess in this action in the
court of claims?

The question thus presented is one of difficulty. If the parties to the transaction
were both private individuals, it would clearly be a case of voluntary payment,
and the amount overpaid would not be recoverable. If, for instance, the owner
of a large body of land placed certain prices on different tracts thereof, and his
agent, dealing with a purchaser of one of those tracts, charged him more than
the price fixed by the principal, the purchaser paying the extra price without
protest, and the principal accepting such payment, the transaction would not
thereafter be open to inquiry in the courts, and the purchaser could not recover
the extra sum which he had paid to the agent. But it is insisted that the relations
between the government and its purchaser are not like those between two
individuals,that there is a constraining power in the government, a species of
force or compulsion in its action, which makes the payment of money by one
purchasing land from it through its officers a payment not voluntary, but an
exaction, and therefore enables the purchaser to recover any excess in the price.

10

We may not enter into any discussion of the mere equities of this transaction, or
the extent of the moral obligation resting on the government to repay a
purchaser an excess in the price charged to and received from him. Our inquiry
is limited to the question whether, in the statutes conferring jurisdiction on the
court of claims, Congress has intended to acknowledge the liability of the

government to every individual who has paid to any one of its officers a sum in
excess of the legal charge for property or services, and given to that court the
power to render judgment against it for such excess.
11

The consequences of such a conclusion are far reaching. The administrative

affairs of the government are carried on by many thousands of officers. The
fees for their services are generally prescribed. The sums which are to be paid
for property obtained from the government are in like manner fixed by statute.
Can it be that every individual who pays for services rendered by any of the
administrative officers of the government, or for property which he obtains
through the action of such officers, may come into the court of claims, and
have an inquiry whether he has paid more than the statutory, fee or price, and,
if he has, obtain judgment for the excess? Suppose, for instance, the statutory
fee for a certificate from a certain official is 25 cents, and a party applying for
such certificate is charged and pays 50 cents, has Congress by its legislation in
respect to the court of claims provided that he can go into that court and recover
from the government the extra 25 cents? If may be said that this is an extreme
case, and that the fee is for the personal services of the officer; but under the
present provisions of the statutes, generally speaking, all fees for the services of
officers belong to the government, and are available only in payment, so far as
they go, of their salaries. It may also be said that no one would go to the trouble
of suing for such a trifle as 25 cents, but if there are 10,000 cases of that kind
the aggregate is no inconsiderable sum. But whether the aggregate of these
claims be large or small, the inquiry is fairly presented whether Congress by its
legislation intended to commit to the courts a supervision of all the charges for
services and all the prices for property which administrative officers collect and
receive, and empowered them to render judgment against the government in
every case of excess therein. Of course, if such was its purpose the courts
cannot decline jurisdiction, and must act in compriance therewith. But before so
holding it seems to us that that purpose should be clearly manifested, and that a
doubt in respect thereto should be resolved in favor of the government.

12

By 24 Stat. at L. 505, chap. 359, jurisdiction is given to the court of claims over
actions against the United States for

13

'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, expressed or implied, with the government of
the United States, or for damages, liquidated or unliquidated, in cases not
sounding in tort.'

14

One contention is that there is an implied contract by the government to return

to the payer any sum in excess of that which is legally due as the price of
property, although the payment was made without any question, protest, or
notice.
15

No one can read the findings without recognizing that the transaction between
the officials of the land office and the claimant was at the time acceptable to
both and without any complaint on the part of the petitioner. Some stress is
placed by counsel on the word 'required,' in the 2d finding, but we think that it
means simply that the government officials charged him $400. To that charge
he made no objection. Take any case in which application is made to an official
for services or for the purchase of property; when he names the fee or the price
the applicant ordinarily without question pays it. In a certain sense the applicant
is required to pay; that is, the sum which he pays is the sum demanded of him.
It may be a rightful or a wrongful demand. When it is demanded it is required.
If he pays without objection, notice, or protest it is simply in response to the
call upon him for the particular sum, and, as we have heretofore said, between
individuals it would be regarded as a voluntary payment.

16

Our attention has been called by counsel to certain opinions of this court, and
some expressions therein, disconnected from the facts, doubtless land
countenance to their contention. Those cases may be placed in two classes:
First, those in which something was purchased from the government which the
purchaser wanted or must have; and second, those in which some official of the
government was called upon to return moneys he had received by virtue of his
office. Swift & C. & B. Co. v. United States, 111 U. S. 22, 28 L. ed. 341, 4 Sup.
Ct. Rep. 244, is an illustration of the first class. In that case the Swift Company
sued to recover certain commissions alleged to be due on the purchase of
proprietary stamps under the internal revenue law. It appeared that the
company had settled with the internal revenue department from time to time,
and it was held that such settlements did not bar it from its right to recover,
although in making the settlements in controversy there was, at the times
thereof, no distinct objection, notice, or protest. It was contended by the
government that the matter was closed by the voluntary action of the parties,
but this court decided otherwise, predicating its decision upon the fact that there
had been long-continued rulings of the department in respect to the basis of
settlement, and that among those who had theretofore made frequent protests
was William H. Swift, who upon the organization of the claimant company
became one of its large stockholders and treasurer. It was held that the
company was not compelledin view of these repeated rulings, and after
protests made by others engaged in the same business, including among the
number one who was largely identified in intorest with itselfto continue those
protests at each settlement. In other words, the thought was that there was no

magic in the mere formality of an objection at the time of each settlement; that
when it appeared that parties engaged in like business had presented the
question to the department and frequently protested against its rulings, and that
among them was one who was largely instrumental in the organization of the
company, one of its large stockholders, and its treasurer, it was a work of
supererogation to every time repeat the formal protest. But the very line of
argument pursued by the court implied the fact that there must have been some
action by the party paying, or those connected with it in business; that the
attention of the department had been called to the matter again and again, its
action protested against, and still it insisted upon the ruling which it had made.
The claimant in the case was held to be so far identified with the parties who
had made protests as to be entitled to avail itself to the benefit of such protests.
The language found in the opinion as to the difference in the position occupied
by the government and a party dealing with it must be understood in connection
with those facts. If taken otherwise, and in the broad sense which counsel
desire, and as carrying with it the suggestion that there can be no voluntary
payment in a dealing between the government and an individual in respect to
the purchase of property from the government, we must decline to accede to it.
17

We quote from the opinion in that case, pages 27, L. ed. 313, Sup. Ct. Rep.
246, and following, that which shows the facts as understood by the court, and
the language upon which the contention is here made:

18

'It appears that prior to June 30, 1866, the leading manufacturers of matches
(among whom was William H. Swift, who, upon the organization of the
claimant corporation 1870, became one of its largest stockholders and
treasurer) made repeated protests to the officers of the Internal Revenue Bureau
against its method of computing commissions for proprietary stamps sold to
those who furnished their own dies and designs; although it did not appear that
anyone in behalf of the claimant corporation ever, after its organization, made
any such protest or objection, or any claim on account thereof, until January 8,
1879. On that date the appellant caused a letter to be written to the
commissioner, asserting its claim for the amount afterwards sued for, as due on
account of the commissions on stamps purchased. To this, on January 16, 1879,
the commissioner replied, saying that the appellant had received all
commissions upon stamps to which it was entitled, 'provided the method of
computing commissions, which was inaugurated with the first issue of private
die proprietary stamps and has been continued by each of my predecessors, is
correct. I have heretofore decided to adhere to the long-established practice of
the office in this regard until there shall be some legislation or a judicial
decision to change it.' And the claim was therefore rejected.

19

'From this statement it clearly appears that the Internal Revenue Bureau had at
the beginning deliberately adopted the construction of the law, upon which it
acted through its successive commissioners, requiring all persons purchasing
such proprietary stamps to receive their statutory commissions in stamps at their
fact value, instead of in money; that it regulated all its forms, modes of
business, receipts, accounts, and returns upon that interpretation of the law; that
it refused on application, prior to 1866 and subsequently, to modify its decision;
that all who dealt with it in purchasing these stamps were informed of its
adherence to this ruling; and, finally, that conformity to it on their part was
made a condition without which they would not be permitted to purchase
stamps at all. This was in effect to say to appellant that unless it complied with
the exaction it should not continue its business; for it could not continue its
business without stamps, and it could not purchase stamps except upon the
terms prescribed by the Commissioner of Internal Revenue. The question is
whether the receipts, agreements, accounts, and settlements made in pursuance
of that demand and necessity were voluntary in such sense as to preclude the
appellant from subsequently insisting on its statutory right.

20

'We cannot hesitate to answer that question in the negative. The parties were
not on equal terms. The appellant had no choice. The only alternative was to
submit to an illegal exaction or discontinue its business. It was in the power of
the officers of the law, and could only do as they required. Money paid or other
value parted with under such pressure has never been regarded as a voluntary
act within the meaning of the maxim, Volenti non fit injuria.' United States v.
Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240, is not in point. The
question there was as to the necessity of a tender on the day of sale in order to
prevent the issue of a valid tax deed. The property was the Arlington estate,
title to which was at the time in Mrs. Lee, and in respect thereto it was said (p.
204, L. ed. 176, Sup. Ct. Rep. 247):

21

'It is proper to observe that there was evidence, uncontradicted, to show that
Fendall appeared before the commissioners in due time, and on the part of Mrs.
Lee, in whom the title then was, offered to pay the taxes, interest, and costs,
and was told that the commissioners could receive the money from no one but
the owner of the land in person.'

22

It also appeared that the commissioners had laid down a rule to the same effect,
and the court held, under those circumstances, that no further tender was
necessary, quoting the general rule laid down in Hills v. National Albany Exch.
Bank, 105 U. S. 319, 26 L. ed. 1052, as follows (p. 202, L. ed. 175, Sup. Ct.
Rep. 245):

23

'It is a general rule that when the tender of performance of an act is necessary to
the establishment of any right against another party, this tender or offer to
perform is waived or becomes unnecessary when it is reasonably certain that
the officer will be refused.'

24

Of course, this decision bears only remotely on what is or what is not a

voluntary payment, and not at all upon the question whether there be any right
of recovery in case of a voluntary payment.

25

Bank of United States v. Bank of Washington, 6 Pet. 8, 8 L. ed. 299, is even less
in point. There it appeared that a judgment had been rendered against the Bank
of Washington; that it sued out a writ of error, and ultimately obtained a
reversal of the judgment; but that before it sued out such writ of error, and
while the judgment was in full force, it paid the amount thereof to one having
in his possession an execution, notifying him at the same time that it intended
to take proceedings to reverse the judgment. It was held that, notwithstanding
such notice, no recovery could be had by the Bank of Washington from the
party who had the execution, he holding, not as owner of the judgment, but
simply as agent to collect; that while upon reversal a recovery might be had
from the judgment creditor, a payment to this third party created no cause of
action against the party so receiving.

26

On the other hand, in Lamborn v. Dickinson County Comrs, 97 U. S. 181, 24 L.

ed. 926, Lamborn, trustee for a land company whose lands had been sold for
taxes to the county of Dickinson, paid the amount of taxes to the county, and
took an assignment of the tax-sale certificates. It was subsequently decided that
the taxes were illegal, and thereupon he brought this action to recover the
amount he had paid. When he made the payment and took the assignment he
made no protest, and it was held that he could not recover, the payment having
been voluntary, and made simply under a mistake of law. Many cases are cited
in the opinion sustaining that proposition. To the same effect is Union P. R. Co.
v. Dodge County Comrs. 98 U. S. 541, 25 L. ed. 196.

27

The other class of cases is illustrated by United States v. Lawson, 101 U. S.

164, 25 L. ed. 860, and United States v. Ellsworth, 101 U. S. 170, 25 L. ed.
862. In each of those cases it appeared that a collector had received certain fees,
some of which he was entitled to retain, but all of which he paid into the United
States Treasury upon the peremptory order of the commissioner of customs.
This was held not to be a voluntary payment or sufficient to prevent a recovery
of the moneys actually due him, the court saying, in the second of these cases
(p. 173, L. ed. 863):

28

'You will also bear in mind, said the commissioner, that all moneys of every
description, not received by warrant on the Treasury, must be actually
deposited. Had he added, if you fail to comply, the law will be enforced, his
meaning could not be misunderstood, as the act of Congress provides that the
gross amount of all moneys received from whatever source for the use of the
United States, with an exception immaterial in this case, shall be paid by the
officer or agent receiving the same into the Treasury at as early a day as
practicable, without any abatement, etc. Rev. Stat. 3617.

29

'Penalties are prescribed for a noncompliance with that requirement, as follows:

Every officer or agent who neglects or refuses to comply with that provision
shall be subject to be removed from office and to forfeit any part or share of the
moneys withheld, to which he might otherwise be entitled. 14 Stat. at L. 187,
chap. 201; Rev. Stat. 3619.

30

'Viewed in the light of these penal provisions, the payments in question made
under the peremptory order of the commissioner cannot be regarded as
voluntary in the sense that the party making them is thereby precluded from
maintaining an action to recover back so much of the money paid as he was
entitled to retain.'

31

On the other hand, in United States v. Wilson, 168 U. S. 273, 42 L. ed. 464, 18
Sup. Ct. Rep. 85, it appeared that a consul for the United States, in his regular
accounts and settlements with the Secretary of the Treasury, charged himself
with certain fees received by him as consul, which he was not obliged to
account for, and paid the same into the Treasury, retiring from office upon a
final settlement without making any claim or protest concerning them, and it
was held that he could not recover them, as they were voluntarily paid into the
Treasury, the court saying (p. 276, L. ed. 465, Sup. Ct. Rep. 86):

32

'There is no pretense that he paid the fees into the Treasury to avoid a
controversy with any department of the government, or that he ever made any
objection or protest against the fees being charged to him as official fees. The
court of claims so finds in substance. If a voluntary payment can be made to the
government, it seems to us that this is such a case, and unless it be declared that
the law of voluntary payments is not applicable to the case of a payment by an
official to the government, we think the payments made by the original
claimant were voluntary. This is not a case of an order or direction for the
payment of these moneys, given to Mr. Van Buren by the officers of the
Treasury or State Departments; nor is it a case where the failure to pay the
moneys might be regarded as disobedience to the peremptory order of a

superior officer; nor a payment under duress. The facts show nothing but a
voluntary payment of money to the government, without claim of any right to
retain one penny of it.'
33

It is clear from these references that this court has distinctly and constantly
recognized the doctrine that where there has been a voluntary payment of
money, using that term in its customary legal sense, the money so paid cannot
be recovered, and also that that doctrine applies to cases in which one of the
parties is the government, and that money thus voluntarily paid to the
government cannot be recovered.

34

We now proceed to notice some special objections of counsel for the appellee.
One is that the defense of voluntary payment made in this case is exceptional
and opposed to the entire policy of the government. Yet confessedly in all
customs cases protest is necessary,made so by express statute. Counsel refer
to Elliott v. Swartwout, 10 Pet. 137, 153, 9 L. ed. 373, 379, in which a reason
for the necessity of protest was given as follows:

35

'To make the collector answerable, after he had paid over the money without
any intimation having been given that the duty was not legally charged, cannot
be sustained upon any sound principles of policy or of law. There can be no
hardship in requiring the party to give notice to the collector that he considers
the duty claimed illegal, and put him on his guard by requiring him not to pay
over the money. The collector would then be placed in a situation to claim an
indemnity from the government. But if the party is entirely silent, and no
intimation of an intention to seek a repayment of the money, there can be no
ground upon which the collector can retain the money, or call upon the
government to indemnify him against a suit.'
And upon that say:

36

'It is evident that customs cases are a class by themselves, and that the reasons
which make a protest absolutely necessary in such cases have no application to
other cases. The questions arising in the administration of the customs laws are
so delicate, with such subtle shades of difference, that it is absolutely necessary
that the Treasury have notice when one of its rulings is to be disputed, in order
that the evidence may be preserved. This necessity has crystallized into positive
law, regulating the form and time for filing protests, and creating a separate
jurisdiction for the trial of such causes apart from other claims against the
government.'

37

But Elliott v. Swartwout was decided before there was a court of claims, and
the specific reason stated in the quotation would not apply to an action brought
directly against the government in such court, and yet the necessity of protest is
still affirmed by statute. So it cannot be said that the defense of voluntary
payment is opposed to the entire policy of the government.

38

Passing from customs cases, counsel refer to several instances in which the
Interior Department has repaid money received under a mistake. Thus, in M. F.
Soto, 6 Land Dec. 384. Secretary Lamar ordered, in respect to a series of cases,
a return of the excess of moneys charged and received by the local land officers
and paid into the Treasury of the United States. An examination of that
decision shows that it was made under the act of June 16, 1880, heretofore
referred to, which in 2 directed the repayment, and in 3 provided that

39

'The Secretary of the Interior is authorized to make the payments herein

provided for, out of any money in the Treasury not otherwise appropriated.'

40

So, Congress having directed a repayment under conditions named in the

statute, and authorized the Secretary of the Interior to make that repayment, the
Secretary simply enforced the mandate of Congress.

41

Re Thomas Kearney, 7 Land Dec. 29, is to the same effect. It may be that the
Secretary of the Interior misconstrued the law of June 16, 1880, as seems
probable from our decision in Medbury v. United States, 173 U. S. 492, 43 L.
ed. 779, 19 Sup. Ct. Rep. 503, but whether he did or no, his action was based
upon that law. The same may be said of the case of Jacob A. Gilford, 8 Land
Dec. 583.

42

Re Frank A. White, 17 Land Dec. 339, a case of desert land entry, is a decision
that no repayment can be ordered in the absence of an express direction by
Congress.

43

The case of Albert Nelson, 28 Land Dec. 248, referred to by counsel, is

significant. In that case it was held that the repayment provisions of the act of
June 16, 1880, did not authorize the Secretary of the Interior to draw his
warrant upon the Treasury for double minimum excess erroneously charged for
lands reduced in price by 3 of the act of June 15, 1880, but that, where the
consideration received for the lands was in the form of scrip still in the custody
of the Land Department, the error might be corrected by that department by a
return of scrip equal in amount to the excess. That means simply that when a
sale has not been closed by the payment of the consideration into the Treasury

of the United States, and while the transaction is in process of administration,

and the consideration is still in the hands of the department charged with the
duty of making the sale, it can correct a mistake in the amount of the
consideration received, and that it is not necessary to turn the entire amount into
the Treasury and leave the party to some other remedy directly against the
government. But it does not follow therefrom that when the consideration has
been paid into the Treasury, and the power of the Secretary of the Interior to
make any correction has ceased, a claimant may ignore the question of a
voluntary payment, and maintain an action to recover the excess.
44

The conclusion we draw from these cases (and no others in respect to the ruling
of the Land Department are referred to) is different from that drawn by counsel.
That Congress has power in all cases to waive the question of voluntary
payment, and provide that any mistake shall be corrected and any excess of
payment refunded by the officer receiving it, or recovered by an action in the
court of claims, is undoubted; that, as shown by these references, it has made
provision in certain cases for a refunding by the department which has received
the money is obvious; and provided for such refunding irrespective of the
question of voluntary payment. Now counsel would draw the inference that the
question of voluntary payment has been waived by Congress in all cases of
transactions between the government through its administrative officers and
private individuals, except in customs cases, and that, if there be no specific
provision for refunding by the department in which the mistake has occurred,
the party may come into the court of claims and enforce his right to recover.
Our conclusion is directly to the contrary, and that Congress, recognizing the
rule of voluntary payment, believed that in certain instances it ought not to be
enforced, and that the department which received money in excess of the legal
charge or price should refund, and so legislated, intending to leave all other
cases subject to express statutory requirement of protest, or to the ordinary and
well-established rule as to the effect of voluntary payment.

45

While the consequences of a construction are not conclusive, yet sometimes

they are worthy of notice. If the jurisdiction of the court of claims is limited to
cases in which the several departments have failed to recognize the direct
mandates of Congress in respect to refunding, comparatively few cases will be
brought into that court. It is to be assumed that the departmental officers will
recognize all legislation of Congress, and carry it into effect in accordance with
its terms, and therefore the only matters for judicial cognizance will be
questions arising as to alleged misconstruction by such officers of its command,
and the only judgments rendered against the government will be those in
affirmance thereof; whereas, if the other construction is accepted, then,
irrespective of any ruling by the department, without any mandate from

Congress to refund, upon the mere fact of a supposed mistake in the fees
charged or the price collected, although such fees or price were paid without
question, the court will have jurisdiction of all actions to recover any alleged
excess, and will be flooded with a multitude thereof. We know that even now
that court is loaded with a volume of cases, prophetic of long delay, and if the
door is to be opened so that all charges made by the government, through its
officers, for fees or prices, irrespective of the question of voluntary payment,
may be litigated therein, it is obvious that its docket will be so burdened that
determination within ordinary limits of time cannot be expected.
46

Finally, we pass to a consideration of the question whether there is anything in

the record to show that which is tantamount to objection and protest. We have
not pursued the order of argument followed by counsel in their brief, but that
which seems to us most natural to develop the questions involved herein. As
indicated in the opinion in Swift & C. & B. Co. v. United States, 111 U. S. 22,
28 L. ed. 341, 4 Sup. Ct. Rep. 244, there are cases in which the formality of a
protest or objection is unnecessary; some things may be taken as equivalent
thereto, or as sufficient in lieu thereof.

47

But we fail to see anything in the record which brings this case within the scope
of that decision. It does not appear that there was any continued, or even a
single, ruling of the Land Department to the effect that land situated as was this
was subject to the price of $2.50 per acre, and, of course, if there had been no
ruling to that effect there had been no objection or protest by anyone. Nor is
there anything to show that the $2.50 was paid on any supposition that it was
an excessive charge, or paid simply for the purpose of protecting a property
right which he had acquired. It is said that, as he had already gone upon the
land and made improvements, that he paid $400 to protect his right to his
settlement and improvements, and that he paid it because such price was
exacted from him; but there is nothing in the record to indicate that he did not
go upon the land in the first instance supposing that the price was $400, or that
he did not file his declaratory statement, makes his settlement and
improvements,all with the expectation of paying the sum which he did
thereafter pay. Under those circumstances it cannot be said that he paid a sum
which was exacted from him, not because he believed it was the proper charge,
but because he felt that it was necessary to protect his rights. In short, and to
sum it up in a word, so far as we can see from this record the transaction was
purely voluntary on his part, and that while there was a mistake it was mutual
and one of law,a mistake on his part not induced by any attempt to deceive or
misrepresentation by the government officials. It is a case of a voluntary
payment, and as such the claimant's remedy is by appeal to the discretion of
Congress, and not by an action in the court of claims. The judgment is reversed,

and the case remanded, with instructions to enter judgment for the government.