3 Ore. Code Ann., 1930, § 57-1201. Reed v. Howbert, 10 Cir., 77 F.2d 227, 229; United States ex rel. McLeod v. Sherman, 98 U.S. 565, 567, 25 L.Ed. 235. The general rule is that "the United States is not liable to [for] interest except where it assumes the liability by contract or by the express words of a statute, or must pay it as part of the just compensation required by the Constitution".
In the absence of constitutional requirements interest can be recovered against the United States only if express consent to such a recovery has been given by Congress. Tillson v. United States, 100 U.S. 43, 25 L.Ed. 543; United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 67 S.Ct. 601, 91 L.Ed. 577; United States v. Alcea Band of Tillamooks, 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738; See 28 U.S. Code, §§ 2411(b), 2516, 2674. There is no express provision in the Servicemen's Readjustment Act, under which this suit was filed, providing for such interest. In our opinion, the allowance or disallowance of interest on the judgment in this case presented a question of law for the District Court. Its failure or refusal to allow interest in the original judgment was a judicial ruling, which could have been reviewed in the usual way. Reed v. Howbert, 10 Cir., 77 F.2d 227; Goldreyer v. Cronan, 76 Conn. 113, 55 A. 594; Howland v. Superior Court, 127 Cal.App. 695, 16 P.2d 318; Green v. Hoffman, 126 Colo. 104, 251 P.2d 933. The judgment is reversed.
Section 3771(b)(2), 26 U.S.C.A., provides for the computation of interest in cases of refunds. It provides that interest shall be computed "from the date of the overpayment to a date preceding the date of the refund check by not more than thirty days, such date to be determined by the Commissioner, whether or not such refund check is accepted by the taxpayer after tender of such check to the taxpayer." United States ex rel. Angarica de la Rua v. Bayard, 127 U.S. 251, 8 S.Ct. 1156, 32 L.Ed. 159; U.S. v. North Carolina, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed. 336; U.S. v. North American Transportation Trading Co., 253 U.S. 330, 40 S.Ct. 518, 64 L.Ed. 935; Seaboard Air Line Railway Co. v. U.S., 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664; U.S. v. Jackson, 10 Cir., 34 F.2d 241, 73 A.L.R. 316; Reed v. Howbert, 10 Cir., 77 F.2d 227; U.S. v. Goltra, 312 U.S. 203, 61 S.Ct. 487, 85 L.Ed. 776. In issuing the check for the refund, interest was computed in accordance with the requirement of the above statute.
See Ireland v. Connecticut Co., 112 Conn. 452, 152 A. 614. But see Reed v. Howbert, 10 Cir., 77 F.2d 227; 1 Freeman on Judgments, 4th Ed., sec. 68. It is now too late, however, to recall the mandate and do that. The term in which it went down passed without any application having been made for its recall and amendment.
United States v. N Y Rayon Importing Co., U.S. 67 S.Ct. 601, 603. See also United States v. The Thayer-West Point Hotel Co., U.S., 67 S.Ct. 398; United States v. Goltra, 312 U.S. 203, 61 S.Ct. 487, 85 L.Ed. 776; Reed v. Howbert, 10 Cir., 77 F.2d 227; Huntley v. Southern Oregon Sales, supra. It follows that if this judgment is against the United States, Rule 25 has no application here, and the trial court should be affirmed. Without challenging the Government's immunity from interest on judgments against it, appellants contend that the judgment involved here is not against the United States within the meaning and purpose of the rule of immunity. It is suggested that the judgment is not a charge against any public funds; that the United States has no pecuniary interest in the controversy, but appeared merely in a representative capacity as a stakeholder until the heirs were judicially determined; that the reason for the rule of immunity does not obtain, and should not therefore apply in this case.
Turner v. United States, supra; Thebo v. Choctaw Tribe of Indians, supra; Adams v. Murphy, supra. It is a well settled rule that the United States is not liable for interest unless the liability is created by statute or assumed by authorized contract. United States ex rel. McLeod v. Sherman, 98 U.S. 565, 25 L.Ed. 235; Angarica v. Bayard, 127 U.S. 251, 8 S.Ct. 1156, 32 L.Ed. 159; United States v. Worley, 281 U.S. 339, 50 S.Ct. 291, 74 L.Ed. 887; Reed v. Howbert, 10 Cir., 77 F.2d 227. That rule applies to the Indian tribes.
Petition of Cohen (D.C.N.Y.) 53 F.2d 865, 866; Reed v. Howbert (C.C.A. 10) 77 F.2d 227, 229; Tucker v. Hawkins, 72 Ark. 21, 77 S.W. 902, 903; Karrick v. Wetmore, 210 Mass. 578, 97 N.E. 92, 93; State v. Turlok, 76 Mont. 549, 248 P. 169, 173; Haynes v. Los Angeles R. Corp., 80 Cal.App. 776, 252 P. 1072, 1074; Bouldin v. Jennings, 87 Ark. 438, 92 Ark. 299, 122 S.W. 639, 641; Liddell v. Landau, 112 S.W. 1085, 1086. See, also, In re Wight, Petitioner, 134 U.S. 136, 10 S.Ct. 487, 33 L.Ed. 865; Mastrianni v. U.S. (C.C.A. 3) 79 F.2d 429. It follows that the bill of exceptions and the assignments of error were not filed in time and should not be considered.
Interest is seemingly not allowable against the United States Government since as the sovereign the Government is immune from the imposition of awards including interest unless the Government consents to such imposition. See Reed v. Howbert, 77 F.2d 227, 229 (10th Cir. 1935); United States v. 125.71 Acres of Land, 54 F. Supp. 193, 195 (E.D.Pa. 1944). But the Postal Service is an entity sufficiently independent of the Government so that a judgment against it is not one against the sovereign.
Conclusions of Law. A. Interest may not be allowed against the United States except where interest has been agreed upon by authorized contractual obligations, or where authorized by an Act of Congress. United States ex rel. Angarica DeLaRua v. Bayard, 127 U.S. 251, 260, 8 S.Ct. 1156, 32 L.Ed. 159; United States v. North Carolina, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed. 336; United States v. North American Transportation Trading Co., 253 U.S. 330, 336, 40 S.Ct. 518, 64 L.Ed. 935; Seaboard Air Line Railway Co. v. United States, 261 U.S. 299, 304, 43 S.Ct. 354, 67 L.Ed. 664; United States v. Jackson, 10 Cir., 34 F.2d 241, 73 A.L.R. 316, affirmed 281 U.S. 344, 50 S.Ct. 294, 74 L.Ed. 891; Reed v. Howbert, 10 Cir., 77 F.2d 227; Busser v. United States, 3 Cir., 130 F.2d 537. In the absence of such authority, interest does not run against the government notwithstanding delay or default in payment.
Counsel for Miller also urges that under the provisions of Sec. 811, Tit. 28 U.S.C.A., he is entitled to interest on the judgment in this case. In our opinion, this statute does not apply to judgments against the United States, but only to the ordinary litigant in the Federal courts: See Reed v. Howbert, Collector, 10 Cir., 77 F.2d 227. An order may therefore be submitted allowing Miller interest on $10,169.50 of the verdict from August 13, 1943, (the date of the affirmation of the judgment of this court by the Circuit Court of Appeals) to December 17, 1943, the date the United States paid into the registry of this court the amount of the verdict.