The only question discussed by counsel is as to the liability of the United States, under the written agreement between McDougall and Wozencraft of April 5, 1852, for the cattle delivered by the former. The argument in support of the judgment below proceeds mainly, if not altogether, upon the ground that the allowance by special acts of congress of claims similar to the one here in suit, in connection with the failure or refusal of the proper officers to prosecute appeals from judgments in the court of claims against the United States upon contracts like the one in suit, constitute a sufficient basis, in law, for a recovery in this case.

Tracing the history of the claims referred to, we find that, by an act approved July 29, 1854, the secretary of the treasury was directed, out of any money not otherwise appropriated, to pay to John C. Fremont the sum of $183,825, with interest at the rate of 10 per cent. per annum from June 1, 1853, 'in full of his account for beef delivered to Commissioner Barbour for the use of the Indians of California in 1851 and 1852.' 10 St. 804.

In Hensley's Case the court of claims delivered an opinion, which was transmitted to congress, February 2, 1850. H. R. 35th Cong. 2d Sess. R. C. Cls. No. 189. It is immaterial to the present inquiry that that court had no power at that time to give a judgment for money against the United States; for, if it had been then invested with all the jurisdiction it now has, the government would have succeeded. Its conclusion, upon the whole case, was that 'the United States are not legally liable upon the contract claimed upon, because it was not made by their authority.' At the same time the court disposed of McDougall's Case, involving the identical claim presented in this case, and held, upon the ground stated in Hensley's suit, that the United States came under no legal liability to McDougall by reason of his agreement with Wozencraft, or of anything done under it. Congress, nevertheless, made provision, by special act of June 9, 1860, to pay Hensley's claim, (12 St. 847,) but failed r refused to make an appropriation to pay McDougall.

Norris also sued upon a similar contract; but, for the reasons given in Hensley's Case, his claim was also rejected. Congress, however, by joint resolution of June 22, 1866, referred that claim back to the court of claims 'for examination and allowance,' and directed 'that, in fixing the amount to be paid the claimant, the rule shall be the actual value of the supplies furnished at the times and places of delivery, of which due proof shall be made by the claimant.' 14 St. 608. In obedience to that resolution, and not because of any change of opinion in the court as to the legal rights of Norris under his written agreement with Wozencraft, the court of claims gave judgment against the United States, at its December term, 1866, for $69,900. Norris v. U. S., 2 Ct. Cl. 155. $<Subsequently, in Fremont v. U. S., 2 Ct. Cl. 462, judgment was given against the United States upon one of this class of claims. That judgment did not proceed upon the ground that the claimant was entitled to recover if the case stood on the contract there in question,—a contract similar to McDougall's,—but upon the ground that the foregoing acts of congress constituted a clear and distinct legislative recognition of the obligation of the United States to pay the fair value of the subsistence furnished for the Indians, as well under the contracts with Fremont, Hensley, and Norris as under similar contracts with other parties. This decision was followed in Fremont v. U. S., 4 Ct. Cl. 252. Finally in Belt v. U. S., 15 Ct. Cl. 106, upon a review of the circumstances connected with this class of claims, the court below adjudged that the United States were in law liable for the value of the subsistence furnished to Indians in California under the agreement there in suit, and which was similar to the one of April 5, 1852, with McDougall. In none of the cases in which judgments were rendered against the United States were appeals prosecuted to this court.

The judgment in the present case was not accompanied by an opinion of the court below, for the reason, perhaps, that the claim of McDougall's administrator is covered by the decision in Belt's Case. After a careful examination of the opinion in the latter case, we are unable to find any solid ground upon which to hold the United States legally liable upon the agreement between Wozencraft and McDougall, or for the value of the cattle delivered under it. That congress, by special acts, made provision for the payment of particular claims of the same class furnishes no ground whatever for the assumption that the government recognized its legal liability for the amount of such claims, much less for the amount of all other claims of like character. Such legislation may well furnish the basis for an appeal to the legislative department of the government to place all claimants of the same class upon an equality. But we are aware of no principle of law that would justify a court in treating the allowance by congress of particular claims as a recognition by the government of its liability upon every demand of like character in the hands of claimants. We may properly take judicial notice of the fact that many claims against the United States cannot be enforced by suit, but provision for which may, and upon grounds of equity and justice ought to be, made by special legislation. But the discretion which congress has in such matters would be very seriously trammeled if the doctrine should be established that it cannot appropriate money to pay particular claims, except at the risk of thereby recognizing the legal liability of the United States for the amount of other claims of the same general class.

The same considerations apply to the suggestion that the liability of the United States to McDougall's administrator, as upon contract, may arise from the failure or refusal of their law officers to prosecute appeals from judgments against the government in suits brought by other a rties holding similar claims. The question to be determined is not whether the representatives of the government have heretofore been guilty of neglect in not prosecuting such appeals, but whether, in the case in hand, the plaintiff has a valid claim in law against the United States.

Coming, then, to the inquiry whether the United States is legally liable on the contract between Wozencraft and McDougall, we are met at the threshold by the fact, found by the court below, that, although the instructions to Wozencraft and his colleagues did not extend to or embrace contracts for the subsistence of the Indian tribes in California, they yet pursued the policy of providing for such subsistence in advance of the ratification by the senate of treaties made with those tribes. That such a policy was, under all the circumstances, vital to the ends which those in charge of Indian affiairs desired to accomplish, may be conceded under the facts found by the court of claims; and it may be that information of the proceedings of Wozencraft and his colleagues in making contracts for the supply of the Indians with provisions, beef, etc., and in all other respects, was was given to the proper department at Washington, and that what they did was either approved or was not repudiated. While all this may be admitted, the the question comes back upon us what statute, in express words or by necessary implication, invested Wozencraft with power to bind the United States by such a contract as that made with McDougall, even had he been previously directed or authorized by the interior department to make contracts of that character in holding treaties with the Indians?

It is suggested that such authority may be found in the act of June 30, 1834, (4 St. 735, c. 162,) the thirteenth section of which provided that 'all merchandise required by any Indian treaty for the Indians, payable after making such treaty, shall be purchased, under the direction of the secretary of war, [afterwards changed to secretary of the interior, 9 St. 395, c. 108, § 5,] upon proposals to be received, to be based on notices previously to be given, and all merchandise required to the making of any Indian treaty shall be purchased, under the orders of the commissioners, by such persons as they shall appoint, or by such persons as shall be designated by the president for that purpose; and all other purchases on account of the Indians, and all payments to them of money or goods, shall be made by such person as the president shall designate for that purpose. And the superintendent, agent, or subagent, together with such military officers as the president may direct, shall be present and certify to the delivery of all goods and money required to be paid or delivered to the Indians.' The seventh section of the same act provides that 'it shall be the general duty of Indian agents and subagents to manage and superintend the intercourse with the Indians within their respective agencies agreeably to law; to obey all legal instructions given to them by the secretary of war, [afterwards changed to secretary of the interior,] the commissioner of Indian affairs, or the superintendent of Indian affairs, and to carry into effect such regulations as may be prescribed by the president.' These statutory provisions, it is argued, conferred authority upon officers of the executive department to purchase, without limit as to amount, 'merchandise required to the making of any Indian treaty,' and invested the president, through others, with power as well to make 'other purchases on account of the Indians' as to make 'payments to them of money or goods.'

This, in our judgment, is too broad a construction of the statute. Congress did not intend to invest the president or the head of a department, or any officer of the government, with unrestricted authority in the making of treaties with Indians, or in regulating intercourse with them, to purchase merchandise for them, or to make payments of money or goods to them. I appropriated certain sums to enable the president to hold treaties with the various Indian tribes in California. To the extent of such appropriations, the president, through persons designated by him, could purchase merchandise, required in the making of a treaty, and could make payment of money or goods on account of the Indians. But no officer of the government was authorized to bind the United States by any contract for the subsistence of Indians not based upon appropriations made by congress. It is not claimed that the agreement between Wozencraft and McDougall was made with reference to such appropriations. On the contrary, Wozencraft and his colleagues were informed by a communication from the Indian office, under date of June 27, 1851, that, 'when the appropriation for $25,000 for holding treaties was exhausted, they should close their negotiations, and proceed with the discharge of their duties as agents simply, as the department could not feel itself justified in authorizing anticipated expenditures beyond the amount of the appropriation made by congress.' The findings show that, when the written agreement with McDougall was made, Wozencraft and his colleagues knew that the appropriations had been exhausted. Besides, the contract on its face shows that it was made with reference to appropriations to be thereafter made. The parties evidently relied upon congress recognizing the wisdom and necessity of the policy adopted for the pacification of the Indians in California, and, by legislation, supplying the want of authority upon the part of Wozencraft and his colleagues to contract, in behalf of the United States, for the subsistence of the Indians in advance of the ratification of the treaties negotiated with them. That the policy pursued by Wozencraft and his colleagues was the only one that would have given peace to the inhabitants of California; that the Indians were induced by the promises of subsistence held out to them to abandon their lands to the whites, and settle upon reservations selected for them; and that the United States thereby acquired title to the lands so abandoned,—are considerations to be addressed to congress in support of a special appropriation to pay the claim of McDougall's administrator. They do not, in our judgment, establish, or tend to establish, a claim against the United States enforceable by suit.

It appears from the finding of facts, that McDougall did not die until after the expiration of nearly twenty years from the time his claim accrued, nor until after more than nine years from the passage of the act giving jurisdiction to the court of claims of suits against the United States founded upon contract, express or implied. It is stated that McDougall's claim was pending in the interior department at the time of his death in 1872. When it was presented to that department is not stated. It may not have been so presented until after the expiration of the period within which it would have been cognizable by the court of claims had suit been brought thereon without first filing the claim in the department. Whether, in that event, the bar of limitation was removed by the mere fact that the claim was transmitted to the court below by the interior department is a matter upon which we express no opinion. No such question is formally raised, and, in view of the conclusion reached, it is not necessary to determine it. We rest our decision solely upon the ground that the contract of April 5, 1852, imposed no legal obligation upon the United States.

The judgment is reversed, with directions to dismiss the petition.