Volume 34 — Court of Claims Reports

<p>The Reporters’ statement of the case.</p> <p>The facts appear sufficiently in the opinion of the court.</p>

The Reporter’s statement of the case; The facts appear sufficiently in the opinion of the court. We respectfully submit that the facts proven and those conceded by the defendant establish a clear case of an implied contract on the part of the defendant to pay claimant what his services are reasonably worth.

The Reporters’ statement of the case: The facts in regard to the motion sufficiently appear in the opinion of the court.

The Reporter’s statement of the-case: These eases were referred to the court by the statute above cited. The evidence before the court was documentary and of great length.

<p> On the Proofs. </p> <p>The claimant sues for wood and fencing burned, and for injury done to meadow land, by a party of Ponca Indians, in charge of an army officer, camping on the property on their way to the Indian Terri- ■ tory.</p> <p>I.Where a party of Indians in charge of a military officer camp on a farm their acts in taking or using property are not wanton acts of taking or destruction.</p> <p>II.The law will not place responsibility upon an Indian tribe for acts presumably authorized by the United States.</p> <p>III.The only liability contemplated by the Indian depredation act is for depredations voluntarily committed.</p> <p>IY. The depredations Congress intended to provide for are limited by the words “taken or destroyed.”</p>

<p>The Reporters’ statement of the case:</p> <p>The facts appear sufficiently in the opinion of the court.</p>

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. Claimant is a corporation duly incorporated and existing under the laws of the State of Massachusetts. Under the act of Congress approved March 3.1883, chapter 96, provision was made for making and testing certain 12-inch cast-iron rifled breech-loading cannon, and a sum of money was appropriated for the manufacture and testing of that class of ordnance.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. On the 22d of August, 1895, claimants entered into the following contract with the United States through Maj. James B. Quinn, Corps of Engineers, United States Army, acting as engineer of the Seventh and Eighth light-house districts: II. “Articles of agreement made and entered into between Edgar & Thompson Foundry and Machine Works, of the city of Mobile, a copartnership,…

The Reporters’ statement of tbe case: Tbe following are tbe facts of tbe case as found by tbe court: I. Tbe claimant, Olivia M. Clifford, is a citizen of tbe United States, residing in tbe city of… Held: that owner may recover on an implied contract though tbe express contract of the agent was ultra vires and void. (Stovall, admr., v. U. S., 26 O. Ols. E., 236; Sehillinger et al. v. 77. S., 24 O. Ols. E., 278, 299; Claris v. 77.

The Reporters’ statement of tbe case: The following are the facts of the case as found by the court: I. On the 15th day of March, 1878, James B. Price contracted with the United States to carry the mails on route No. 30183, from Monroe to Shreveport, La., and back seven times a week for the term of four years, beginning July 1, 1878, and ending June 30, 1882, for the compensation of $9,380 per annum, and the said contract provided for “ one month’s extra pay on the amount of…

The Reporters’ statement; of the case; The following are the facts of the case as found by the court: I. Loyal Stevens was, in 1863 and 1864, a citizen of the United States, living at or near where Fairbury, Nebr., now stands, and was then and there the owner of a large number of hogs and shoats. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. September 15,1888, the… Held: both in this court and in the Supreme Court, that though a city transfer contract provides for new or additional mail-messenger or transfer service in said city, the post-office can not compel the contractor to take mails to another city, over the line of another contractor, for delivery there to him, unless there be a specific…

<p>The Reporters statement of the case:</p> <p>The allegations of the petition are set forth in the opinion of the court.</p>

The Reporters' statement of tbe casé: The following are the facts of the case as found by the court: I. At the time of the depredation hereinafter stated claimants were citizens of the United States. II.

The Reporters’ statement of tbe case: Tbe following are tbe facts of tbe case as found by .tbe court: I. Claimant is a citizen of tbe United States and an officer upon the retired list in tbe Navy thereof, to wit, a lieutenant, having been commissioned as such on tbe 25th day of October, 1872, and placed upon tbe retired list on the 3d day of July, 1893. II.

The Reporters’ statement of the ease: The following are the facts of the case as found by the court: I. The claim involved in this case… Held: “In an act exempting from taxation ‘all colleges, with the ..grounds annexed and necessary for the enjoyment of the same,’ •J the word ‘necessary’ as used in jurisprudence imports not an absolute, but a reasonable necessity.”- (North Hampton Go. v. Lafayette College, 45 Leg. Int. (Pa.), 246.) In Chalcraft v. Louisville, etc., B. Go.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. On the 14th of June, 1860, the President established a military reservation at Fort Randall, then in Nebraska Territory, afterwards in Dakota Territory, and now in the State of South Dakota.

<p>The Reporters’ statement of the ease:</p> <p>The stipulation and motion are set forth in the opinion of the court:</p>

<p>The Reporters’ statement of the case:</p> <p>The grounds of the motion are set forth in the opinion of the court.</p>

The Reporters’ statement of tbe case: ' The following are the facts of the case as found by the court: I. On August 12,1892, the defendants, by W. S. Stanton, major, Corps of Engineers, United States Army, advertised for sealed proposals for dredging in the Cape Fear River, below Wilmington, in North Carolina, according to certain specifications and instructions attached to and forming part of said advertisement. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. October 3, 1883, the owners of the brig Tally-ho (the vessel referred to in the act of Congress of January 9, 1897) (Stat.

The Reporters’ statement of tbe case: The facts appear sufficiently in the opinion of the court. What the purpose of the learned counsel is in the introduction of (these) limitation statutes on fractional year’s service and the decisions of courts applying such statutory limitations on fractional year’s service of officers does not appear. Manifestly, they have no bearing whatever on the issues involved in the cases at bar.

The Reporters’ statement of tbe case: The following are the facts of the case as found by the court: I. The petitioner, Charles L.… Held: under the provisions of that act and of the Revised Statutes, to wit, sections 613 and 658 of the Revised Statutes, the six terms of the circuit court of the United States for the southern district of New York, referred to in said statutes, in every year, and has received for holding each of said terms the sum of $300, the same being…

The Reporters' statement of the case: The following are the facts of the case as found by the court: I.The claimant was appointed a… Held: “Where power is given by statute to public officers, in permissive language — as that they ‘may, if deemed advisable,’ do a certain thing — the language used will be regarded as peremptory, where the public interest or individual rights require that it should be.” In the present case it is the right of the individual that is involved…

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. September 30, 1854, the United States, through their commissioners, appointed for that purpose, entered into a treaty with the chiefs and headmen of the “Chippewa Indians of Lalre Superior and the Mississippi” (10 Stat.

<p> On the Proofs. </p> <p>Claimant sues to recover a balance of salary unpaid as postmaster under tlie Act 3d March, 1S83 (22 Stat. L., p. 487), directing the Postmaster-General to readjust salaries. The Supreme Court decides (McLean v. The United States, 95 U. S. R., 750) that such an action can not he maintained unless a readjustment has preceded it. ''The claimant seeks to establish such readjustment by correspondence between the Postmaster-General and a Senator.</p> <p>I.Examination, of a case will stop when it appears that the evidence , relied on is a correspondence to all intents and purposes between the legislative and executive branches of the Government, entered into for the purpose of obtaining data for legislation.</p> <p>II.A statement of computation made up from the books of the Post-Office Department at the request of a Senator, but never adopted by the Postmaster-General, is not an adjustment of salary.</p> <p>III.The court can not direct the Postmaster-General as to what adjustment should be made.</p>

<p>The Reporters’ statement of tbe case:</p> <p>Tbe case was submitted on tbe question of jurisdiction. •</p>

The Reporters'’ statement of the case: The following are the facts of the case as found by the court: 1. On July 25,1804, the claimant enlisted as bandsman in the United States Navy to serve three years and served thence therein until August 15,1865, after which date there is no record of his service in the Navy, and, in consequence, he was entered on the Navy records as a deserter. 2.

The Reporters' statement of the case: The following are the facts ás found by the court: The claimant was born in the year 1833, in the State of Chihuahua, Mexico. His father was born in El Paso, Tex., and at the time of claimant’s birth his parents were living in the State of Chihuahua, Mexico. When the plaintiff was about 3 years old he removed with his parents to Texas, where he has since resided, and so resided at the timé of the alleged depredation.

The Reporters' statement of the case: A citation was issued to the claimant in this case after the reference of the claim. He did not appear, and the defendants submitted it. Upon the view taken by the defendants it becomes unnecessary to discuss the question whether or not the decision of the Commissioner of Internal Revenue was correct.

The Reporters’ statement of tbe case: The facts of the case Sufficiently appear in the opinion of the court. Has the Goverment the legal right to withhold this $1,280 from the claimant under said clause of the contract'? Is it liquidated damages or a penalty ? Claimant holds that it is a mere penalty — that, $20 per day forfeiture does not measure .■ the damages.

The Reporters' statement of the ease: This ease went off on two • statutory grounds. First, the Secretary of War was without power to refer the case to this court, it having been finally settled by the Comptroller within the intent of certain statutes.

Tbe Reporters’ statement of tbe case: Tbe following are tbe facts of tbe case as found by tbe court: I. November 16,1893, tbe defendants advertised for sealed proposals, to be received until 2 o’clock p. m. on tbe 8tb day of December, 1893, “for all tbe labor and materials required for the erection and completion (except beating apparatus) of an extension to tbe United States custom-house and post-office building at New Haven, Conn., in accordance with tbe drawings and…

The Reporters’ statement of tbe case: The allegations of the petition to which the defendants demur are stated in the opinion of the court.

<p> On the claimant’s Motion. </p> <p>The commissioner in these cases reports that though the postmaster at Chicago testified that no overtime was made after May 1, 1893, with his knowledge and consent, it nevertheless appears that overtime was made and was necessary for the service, and that it was with the knowledge of the postmaster's immediate subordinates, some of whom reported the facts to him, and that he took no steps to prevent it. It also appears that in some cases carriers were forbidden to record overtime by their foremen, and in some cases did not report it for fear of reprimand or change of route.</p> <p>I. In administering the eight-hour law postmasters can not shield themselves behind their subordinates while evading it.</p> <p>II. Where overtime is made hy letter carriers under the supervision of subordinates who report the facts to the postmaster, and he does nothing, his consent must he presumed.</p>

<p> On the defendants' Appeal. </p> <p>The petition alleges that the claimant made an entry nnder the desert-land act upon a reserved section within the limits of a railroad grant; that he acquired no right or title thereby; that accordingly he did not reclaim the land; that his entry has heen canceled; that the consideration was void, and that he brings this action to recover hack the purchase money on the implied contract. The defendants demur, setting up the distinction between implied contracts and quasi contracts, and contending that the obligation to refund the purchase money is not an implied contract, and that the court is without jurisdiction. A primary question in the case is whether an entry can he made under the desert-land act upon reserved sections of railroad land grants.</p> <p>The court below decides:</p> <p>1. Whether an entry under the Desert-Land Act, 3d March, 1877 (19 Stat. L., 377), upon a reserved section within a railroad grant (Eev. Stat., § 2357) is absolutely void, and whether such an entry, if not void, is authorized at the minimum price of $1.25 acre?</p> <p>2. The land laws are a matter of general public concern, and the Executive Departments should not be embarrassed by decisions which can not be reviewed by the Supreme Court.</p> <p>3. The Tucker Act, 1887 (24 Stat. L., p. 505), considered as a jurisdictional statute, is largely a codification of existing law and was intended to be in enlargement and not in restriction of jurisdiction.</p> <p>4. The term “upon any contract, expressed or implied,’’ is used in all the jurisdictional acts with reference to the common-law classification of actions “ex contracta’’ and “ex delicto.” The meaning is that the court shall have jurisdiction of all actions ex contracta but not of actions ex delicto.</p> <p>5. The peculiarity of cases against the Government is that there exists a compact between it and the citizen that it may take his property for public use on the condition of making just compensation, but that its liability is to be measured always by the authority which it has expressly given its agent or the benefit which it has actually received. Hence there may be actions which are ex delicio when between individuals, yet ex contractu when between the citizen and the Government.</p> <p>6. The Tucker Act, when it provides that the court shall have jurisdiction of “all claims founded upon the Constitution” and excepts suits “sounding in tort,” does little or nothing more than provide that the court shall not be troubled with suits in which there is no governmental liability.</p> <p>7. The phrase, “ the law will imply a contract,” is well understood, both in courts and legislatures, and when used figuratively is not incorrect. The meaning is that on a given state of facts the law authorizes a court to infer from them the contract which the defendant ought to have made, and precludes him from evading responsibility by setting up his own tortious act or unconscionable intent as a defense.</p> <p>8. Where the agents of the Government sold land which they had no authority to sell, and received money which they ought not to have accepted, the money is due, ex aequo et hono, and recoverable in an action on implied contract.</p> <p>9. There are cases of implied contract where it is necessary to discriminate, in ascertaining the rights and obligations of the parties, between contracts which are implied and obligations which are enforceable quasi contracts.</p> <p>10. The scope and nature of obligations which may be enforced quasi contracts, and which in this court have been treated as implied contracts for purposes of jurisdiction, examined and stated.</p>

<p>Claimants enter into a contract to build a dry dock at tke Brooklyn Navy-Yard. In executing tke contract tkey came upon quicksands, to wkick tke contract contains no reference, and wkick increase tke time required to perform tke work; tkey ask for an extension, wkick is granted, and a settlement witk an allowance for extra work is made. Tkree years later tke claim for extra labor and material is brougkt and refused and a suit begun. Tke court below decides:</p> <p>1. A provision in a contract tkat tke contractors will build dry docks in certain navy-yards “upon available sites to be provided by the Government” can not be so construed as to bind tke Government to furnish information witk regard to tke subsoil or to warrant tke site as being wkat it appears.</p> <p>2. An “available site" for a dry dock in a navy-yard is one wkick is free from buildings, easy of access from tke shops, convenient for workmen, having practicable entrance from the water, and wkick interferes as little as practicable witk tke other uses of tke yard. The term does not import one wkick has a good subsoil free from quicksand and defects wkick may cause an extraordinary expense to tke builders.</p> <p>3. Where a contract throws the risk of construction upon tke builder and it was so understood by tke defendants, and there was no mutual mistake of fact, there is nothing in tke contract to reform.</p> <p>4. Where contracts and specifications are drawn by the contractors, doubtful expressions will be construed more strongly against them.</p> <p>5. Where a contract is drawn and tendered by an expert in a difficult and unusual class of work, one of tke unwritten considerations is tke dependence of tke employer upon tke skill of tke specialist who undertakes tke work. Tke danger of tke undertaking should be contemplated by tke latter when he enters into the- contract.</p>

<p> On the defendants Appeal. </p> <p>The Supreme Court decides—</p> <p>5. That if the land in question passed under the treaty, it is only a question among the Indians themselves who were signatories thereto or assented to its terms.</p>

<p> On the defendants’ Appeal. </p> <p>Deputy marshals seet to recover a reward of $500, offered for the arrest of one McNeil for violating the revenue laws in Florida.</p> <p>The court below decides:</p> <p>1. The pay of United States deputy marshals is not fixed hy law, nor are they paid out of the Treasury of the United States for services.</p> <p>2. A deputy marshal is not an officer “or any other pei'son whose salary,pay, or emoluments are fixed 6y law or regulation,” as provided in Revised Statutes, § 1765; nor is he a civil officer receiving “a salary and compensation allowed l>y law,” as provided by the Act June 20,1874 (18 Stat. L., 109).</p> <p>3. The purpose of section 1765 and of the act 20th June, 1874, was that officers receiving a salary or compensation allowed by law should not receive other compensation, except as stated in the several acts not applicable to this case.</p> <p>4. The payment of a reward to an officer for services within the scope of his official duties is contrary to public policy.</p> <p>5. Under the common law “hue and cry” could he raised by any private citizen, and a constable and his attendants had the same power, protection, and indemnification as if acting under the warrant of a justice of the peace.</p> <p>6. All duties devolving on a deputy must be x>erformed in the name of his principal; he has no official character.</p> <p>7. A deputy is not the prescribed official agency for making arrests. His actions depend not on the law, but on his employer.</p> <p>8. Where a reward is offered in general terms for the arrest of an offender and the arrest is made by a regularly appointed deputy, assisted by a special deputy for the purpose, they are properly joined as claimants and are entitled to the reward.</p>

Tbe court below dismissed tbe claimant’s petition for want of jurisdiction, having found tbe Indian tribe charged with depredation not in amity with tbe Government at tbe time tbe depredation took place.