Volume 40 — Court of Claims Reports

The Reporters' statement of the case: This case was decided on the 5th May, 1904, but a motion to amend the findings was shortly thereafter made, which was overruled on the first day of the present term without an opinion being delivered.

The Reporters’ statement of the case: The facts relating to this case will be found in 39 C. Cls. R.; 225, and in the opinion of the court on this motion.

The Re-porters’’ statement of the case: The following are the facts of the case as found by the court: I. The claimant is an officer of more than twenty years’ service in the Navy, and on the 11th clay of May, 1898, .reached the rank of lieutenant-commander, and on the 3d-clay of March, 1901, that of commander, and has ever since been a commander in the Navy. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. On March 20, 1883, the United States, through Maj. W. H. H. Benyuard, of the Corps of-Engineers, U. S. Army, advertised for proposals for furnishing stone for the construction of two locks on the Illinois River, near Lagrange and Kampsville, Ill.

The Reporters'1 statement of the case: The following are the facts of the case as found by' the court: I. The schooner Maria, William Cole, master, sailed on a commercial voyage December 21, 1798, from Salem, Mass., bound for Bilboa, Spain. While peacefully pursuing said voyage she was captured on the high seas on the 24th day of January, 1799, by the French privateers Tiger and Hiron-délle and carried into Sacoa, France.

The Reporters’ statement of the case: The facts upon which the claimant’s motion for a new trial was grounded appear in the opinion of the court.

The Reporters’ statement of the case: The following are the facts of the case, as found by the court: I. The claimant herein, Henry S. Terrell, ivas enrolled in the military service of the United States, in the First Regiment Connecticut Artillery Volunteers, as a second lieutenant in Battery C, on May 7, 1898, and was mustered out as a first lieutenant.

The Reporters' statement of the case: This being a case in equity, the facts were not formally found by the court but are stated in its opinion.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. On the 26th dajr of April, 1898, and prior thereto, the claimant was an assistant surgeon, with the rank of captain, in the organized militia of the State of Indiana in service therein in the First Regiment of Infantry, Indiana National Guard. II. The regiment was organized by virtue of a law of the State of Indiana, as follows: “7701. Regimental and battalion staffs. 18.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Edward D. Legg, was enrolled on April 26, 1898, in the military service at Coldwater, Mich., and mustered into the United States service as first lieutenant in Company A, Thirty-second Regiment .of Michigan Infantry Volunteers, on May 12, 1898, and mustered out with his company as a first lieutenant on November, 5, 1898, at Cold-water, Mich. II.

The Reporters’ statement of the case: The following are the facts of the case, as found by the court: I. On September 25, 1896, the defendant advertised for sealed proposals, to be received until 2 o’clock p. m., October 28,1896, and opened immediately thereafter, for all the labor and materials required for the interior finish of basement, first story, etc., of the United States post-office, Washington, D. 0., in accordance with drawings and specifications, copy of which…

The Reporters'’ statement of the case: The following are the facts of the case as found by the court: I. Claimant became and has ever since been a railway postal clerk by virtue of a commission issued under the authorities of the Post-Office Department by the General Superintendent of the Pathway Mail Service, dated March 11,1893; that this commission, among other things, contains the following: “ You will be obliged to move to some point (to be designated by your division…

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. On June 23, 1897, the Government advertised for bids for certain dredging at the United States navy-yard, Mare Island, Cal., to be indorsed “ Proposals for extension of quay wall.” “ Dredging a channel in Mare Island Strait, and other dredging,” respectively. 'It was stated in the advertisement for said bids that specifications and blank forms of proposal would be…

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

The Reporters’ statement of the case: The following are the facts of the case as found by tbe court: I. The claimant, John J. Allen,- was a commissioner of the Circuit Court of the United States for the Eastern District of New York from February 1, 1886, to January 20, 1892, qualified and acting as such. He was also chief supervisor of elections for the district, acting as such. II.

<p> On the claimant’s Motion. </p> <p>There being a fatal defect in the evidence, the claimant’s attorney proposes in open court to dismiss the ease, but does not do so. Subsequently he discovers the necessary link of evidence, which makes the ease complete. Subsequently the claimant moves to dismiss the attorney. Eater, the case is regularly reached on the calendar, and judgment goes for the claimant, by which he recovers all that he sues for. After this the motion to dismiss the attorney is brought to a hearing.</p> <p>I.The court does not approve the practice of a lawyer dismissing his case without the knowledge and consent of his client, though it may be justified and not be malpractice.</p> <p>II.Where a party deems his attorney to have improperly acted, he should move immediately to dismiss him and not wait until the attorney has procured further evidence and prepared the case for trial.</p> <p>III. A party who moves to dismiss his attorney becomes chargeable with notice of what may be done in the case, and should appear when it is regularly reached on the calendar if he does not wish his attorney to act then.</p> <p>IV. After judgment the rights of both client and attorney aré generally regarded as having become fixed, and this is peculiarly applicable in a ease where the client has lost nothing and has secured all that his suit was instituted to obtain.</p>

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant above named, Narciso Basso, is a native inhabitant of the island of Porto Rico, and at all the times referred to in the petition resided and now resides in the town of Humacao, in said island. II.

<p>The Reporters'1 statement of the case:</p> <p>The facts of the case sufficiently appear 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. In October, 1901, the depot quartermaster of the United States Army, in New York, published the following advertisement for proposals: “ General depot of the Quartermaster’s Department, Army Building, Whitehall street. “ Specifications and conditions under which proposals must be made for furnishing and delivering of forage alongside of vessels in New York Harbor as may be…

The Reporters’ statement of the case: The following are the facts of the case found by the court: I. The claimant herein, a corporation, was organized under the Days of the State of Alabama in the year 1848, and, as such corporation, oaviis and operates a railroad from Mobile, Ala., through the States of Alabama, Mississippi, Tennessee, and Kentucky, to Cairo, Ill., a distance of 495.88 miles, with a number of branches also in Alabama, Mississippi, and Tennessee.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. On the 30th of October, 1899, the Navy Department telegraphed to the commandant of the Boston Navy-Yard concerning certain, officers, of whom the claimant was one, “ Upon reporting to you, instruct them to proceed immediately to Mare Island.” II.

<p>The Reformers' statement of the case:</p> <p>The facts of this case sufficiently appear in the opinion of the court.</p>

The Reporters’ statement of the case: The facts in this case are sufficiently set forth in the opinion of the court. 1. Held: is the real test as to the real party in interest. (Sheridan v. The Mayor, 68 N. Y., 30; City Bank of New Haven v.-Perkins, 29 N. Y., 554; Gage v. Kendall, 15 Wench, 640.) The decisions by this court show that it has not the power to extend the application of section 1080 to any person other than the claimant of record.

The Reporters'1 statement of the case: The following are the facts of the case as agreed upon by the parties and accepted and found by the court: I. Section 68 of the act of Congress of July 1, 1902,… Held: that his running a new line on the basis of his own judgment as to what was the correct boundary was in excess of authority and avoiding the award.

The Reforters’ statement of the case: The following are the facts of the case as found by the court: I. The United States, through a captain of engineers, United States Army, contracted in writing with claimants September 10, 1897 — which contracts, three in number, were approved by the Chief of Engineers, United States Army, September 27, 1897 — to furnish all labor and material necessary for the construction of a levee above Greenville, Miss., the construction to be paid…

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant herein, Judson H. Hovey, was enrolled in - the military service of the United States on April 25, 1898, as a major in the Seventh Regiment Ohio Volunteer Infantry. He served honestly and faithfully within the limits of the United States, and was honorably discharged on the 6th day of November, 1898, on muster out of his regiment. II.

The Ref otters’ statement of the case: The following are the facts of the case as found, by the court: I. July 21, 1897, the -President appointed. John T. Wertz to be a special agent to make allotments of lands in severalty to Indians on the Wind River or Shoshone Reservation, in Wyoming, under the provisions of the act of February 8, 1887 (24 Stat. L., 388), as amended by the act of February 28, 1891 (26 Stat.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Charles E. Steele, was, on and prior to the 7th day of December, 1901, a letter carrier in the post-office at Houston, in the State of Texas, of the class entitled by the act of January 3,1887, section 3 (1 Supp. R. S., 519), to a salary of $850 a year. II.

The Reporters' statement of the case: The following are the facts of this case as found by the court: I. The claimant, Walter A. Wiley, was appointed a cadet in the Revenue-Cutter Service November 15, 1895, and has served continuously therein ever since. He was appointed and commissioned a third lieutenant in said Service March 25, 1898, and a second lieutenant March 17, 1902, and is still such second lieutenant. II.

The Reporters’ statement of the case : The following are the facts of the case as agreed upon by the parties ancl accepted and found by the court: First. The subject-matter of and the questions involved in this cause are as set forth in the letter of the Secretary of the Interior, dated February 24, 1903, to be found on pages 60 and 61 of the printed record. Second.

The Reporters'1 statement of the case: The facts of this case are sufficiently set forth in the opinion of the court and in the decree attached to the opinion. For the half-breed Senecas and Tuscaroras: Mr. William IT. Robeson and Mr. John J. Hemphill. For the New York Indians in the Indian Territory: Messrs. George A. c& William B. 'King, William H. Robeson, John J. Hemphill, and Dudley For the Western band of Cayugas: Mr. W. F. Partelovj.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Clinton D. Thurber, was on the 1st clay of January, 1904, appointed and commissioned an assistant civil engineer in the Navy under the act of March 3,1903 (32 Stat. L., 1197), and accepted the appointment and took the oath of office January 20, 1904. Assistant Civil Engineer Thurber was on waiting orders up to and including January 26,1904.

<p> On the Proofs. </p> <p>The claim is transmitted by the Secretary of the Treasury as involving a controverted question of law. The question is whether or not under the provisions of the act of 3d March, 1899, a State or Territory is entitled to receive from the United States the full amount of compensation allowed by its laws to officers and men of its National Guard for the period between the date of their assembly at the rendezvous and the date they were mustered into the service of 1he United States in 1898 without a deduction of the amount which they have since received from the United States.</p> <p>I. In the case of Hovey (ante) is is held that an officer or soldier of State troops in the Spanish war may recover pay from the time of his enrollment to the time of his muster in. notwithstanding that he has been paid by his State and that the United States have reimbursed the State therefor; and such ruling was based on that of the Comptroller in the case of the State of Wymninff (0 Comp. Dec., 896).</p> <p>II. Under the principal laid down by the Comptroller of the Treasury and this court it must be held that payment by the United States to officers and soldiers engaged in the war with Spain and payment by a State for a part of the same period of service are distinct things, having no relation to each other; and that an officer or soldier may recover against the United States for the one and a State for reimbursement of the other.</p>

The Reporters’ statement of the case: This case having been heard by the Court of Claims, the court upon the evidence makes the following findings of fact: I. The claimant herein is a corporation… Held: not for the benefit of the United States, but in trust for the Cuban people.

<p> On the cross Apfeats of the parties. </p> <p>An officer commanding a véssel is detached at Barbados and ordered to report at the Navy Department. He travels from Barbados by sailing vessel and is allowed only his actual expenses and shore-duty pay. 1-Ie is immediately ordered “ to Hongkong for duty on the Asiatic Station,” and on arriving there is assigned to the command of the Baltimore. He is allowed only shore-duty pay and his actual expenses or commutation therefor given by Revised Statutes, sections 1578, 1585.</p> <p>The court below decides:</p> <p>1. A naval officer detached from his vessel at a port of a foreign country and ordered to report at the Navy Department is on shore duty while traveling to Washington, and is not entitled to the full pay of his rank.</p> <p>2. An officer detached from his vessel at Barbados and ordered to report to the Navy Department at Washington and thence ordered to Hongkong “ for duty on the Asiatic Station,” and on his arrival assigned to the command of a vessel, is entitled only to shore-duty pay while traveling from Washington to his vessel on the Asiatic Station.</p> <p>3. A naval officer is not entitled to the increase of 10 per cent in pay for service in the Philippine Islands or in China or for “ serving beyond the limits of the United States” given to army officers by the Acts 26th May, 1900, and 2d March, 1901 (31 Stat. L., 211, 903), unless he was “detailed for shore duty" as provided by the Navy personnel act. But on motion for a new trial this ruling is reversed.</p> <p>4. Since tlie enactment of the Navy personnel act a naval officer is not entitled to the sea ration given by the Revised Statutes, sections 157S, 1585.</p> <p>5. The proviso in the Navy personnel act declaring that “ no provision of this act shall operate to rechice the present pay of any commissioned officer” and the Act 7th June, 1900 (31 Stat. L., 084, 007), providing “that nothing therein contained shall . operate to reduce the pay ” do not extend to allowances.</p> <p>Later in the term the court, oil a motion for a new trial, decides:</p> <p>1. A naval officer performing sea service in Asiatic waters is entitled to the “ increased tan per centum ” of pay given to officers of the Army by the Act 2(ith May, 1900. (31 Stat. L., p. 211.) Reversing the former decision of the court in this case, p. 113, ' ante.</p> <p>2. A naval officer performing sea service in Asiatic waters is entitled to the “ increased ten per centum ” of pay given to officers of the Army by the Act 2d March, 1901 (31 Stat. L., p. 903), “ from the date of departure from, the United States to the date of return thereto.” Reversing the former decision of the court in this case, p. 113, ante.</p>

<p>On the defendants’ Appeal.</p> <p>Claimant brings suit October 24, 1891, against the United States and the Ute tribe of Indians.</p> <p>On November 4, 1902, the claimant files a motion for leave to amend his petition by substituting the Kiowa Indians for the Utes, which is allowed, overruling the defendants’ plea in bar On the trial the court gives judgment for the claimant.</p>

<p> On the claimant''s Appeal. </p> <p>The claimants, in San Francisco, contract “ to furnish and deliver ” to the Quartermaster’s Department at Honolulu, “ delivered at the wharf,” 3,900 tons of Australian coal. Also by another contract, to deliver “ about 5,000 tons;-” “deliveries to commence with a cargo of about 2,200 tons; ” and the Quartermaster’s Department■ agrees to pay “for 5,000 tons.” This contract also provides that in case of failure to perform on the contractors’ part, the defendants “shall have the power to supply deficiency by purchase in open ma/rlset ” and charge the contractors with “ the extra cost over contract price of any coal so procured.” At Honolulu part of the coal is transferred to a United States vessel in the harbor; the remainder is unloaded on a wharf; but the harbor master compels the vessel to wait her turn before going to the wharf to discharge her cargo, which is the usage of the port. For the delay the claimants have to. pay demurrage. After delivering on the 5,000-ton contract 4,634 tons, carried by their own chartered vessels, the claimants purchase and tender the remaining 306 tons. The defendants refuse to receive it. The contractors sell it at a loss.</p> <p>Tlie court below decides:</p> <p>1. Where a contract, made in San Francisco, was to deliver coal “ at the wharf” in Honolulu, and the vessel, without fault of the defendants, was detained by the harbor master in consequence of the crowded condition of the harbor, the movement of vessels in the harbor being subject to his control, the purchaser can not be charged with demurrage,</p> <p>2. A usage in San Francisco to pay demurrage in sucli a case can not control the terms of the contract.</p> <p>3. Where a contract reduced to writing is inconsistent with usage, the parties, it will be presumed, agree to waive usage. Usage is admissible to explain what is doubtful, but never to contradict what is plain.</p> <p>4. Where the rights and liabilities of the parties to a contract are fixed by the general principles of the common law they can not be changed by a local custom of the place where the contract is made.</p> <p>5. Where the vendors deliver two cargoes containing 4,034 tons and subsequently purchase and tender the remaining 306 tons, they can not recover their losses on the coal so tendered, if refused, upon a contract which is for the sale of “ about 5,000 tons."</p> <p>6. Where the language of a contract is the vendor’s it should be most strongly construed against him.</p>

<p> On the defendants'1 Appeal. </p> <p>A fireman on the TJ. S. S. Yorktown, who has served nearly, five years and received good-conduct medals, is ordered to take a watch from noon to 4 p. m. Having at 8 a. m. come off a watch and having from 8 a. m. until noon worked in the bilgers under hot boilers, and having his regular watch to perform from 8 p. m. to midnight, he considers this order an injustice and refuses to obey. On the trial he states that so considering ■ it he became excited and said more than he intended, and realized afterwards that he should have obeyed the order first and tlien appealed to the commanding officer. lie is arrested on tlie same day (2Gth May, 1899) and put in irons tor safe-keeping and held on shipboard as a prisoner until July 5, when he is brought to trial on charges not served on him until the 1st of July. He is convicted and sentenced to one year's imprisonment, to perform extra police duties during such confinement, and to lose pay- amounting to $87(1.</p> <p>The Court of Claims decides:</p> <p>1. The Act 17th July, 1862 (Itev. Stat, p. 283, section 1G24, article 43), provides : “ The person accused shall be furnished with a true copy of the, charges, %oith the specifications; at the time he is put under arrest; and no other charges than those so furnished shall be urged against him at the trial.” The history of this act shows that its provisions were intended to he jurisdictional.</p> <p>2. Sailors, being beyond the reach of the writ of habeas corpus and generally without legal advice, have always been subjects of protective legislation and jurisprudence.</p> <p>3. In civil life a man can not be deprived of life, liberty, or property except by due process of law. In the Army and Navy the proceedings are different and the safeguards less assured, but the principle is the same.</p> <p>4. In the Navy a man may he arrested and confined without an assigned reason being .given; but this confinement is limited by statute to “ not exceeding ten days.” (Rev. Stat., p. 281, article 24.)</p> <p>o. A longer confinement than ten days can he imposed on a man in the Navy only by sentence of a court-martial. •</p> <p>G. The provision that “ the person accused shall be furnished toith a true copy of the charges, with the specifications, at the time he is put under arrest, and no other charges than those, so furnished shall be urged against him at the trial,” can have but one meaning, and that meaning can not be expressed in plainer or simpler or more positive language than that of the statute.</p> <p>7. The initial sentence of the articles (Rev. Stat., p. 275) declares that “ the Wavy of the United States shall be governed by the following articles," and there is nothing in the forty-third article which indicates that it is directory and not mandatory.</p> <p>8. A court-martial is not invested with power to grant time to persons accused. All that it can do is to report the facts to the officer who convened the court. It will then be a matter of discretion with him to grant or refuse further time to a prisoner who was not furnished with a copy of the charges at the time of his arrest! This is not equivalent to the safeguard given by the forty-third article, which is one of the rights contemplated by the Supreme Court when it said they “ ean neither he exposed to dunyer nor subjected to the itncon-trolled will of any man.” (Rwnlcle v. United, States, 122 U. S. It., 543.)</p> <p>9. Where the accused was not furnished with a true copy of the. charges, with the specifications, at the time of his arrest, or perhaps within ten days thereafter, the sentence of a naval court-martial forfeiting his pay was contrary to law and void.</p>

<p> On the claimants’ Affeal. </p> <p>Claimants sue to recover duties exacted on merchandise shipped to Manila between April 11, 1899, the date of the treaty with Spain, and October 25, 1901. The duties are levied under an order of the President dated July 12, 189S.</p>

<p>The Milwaukee and Northern Railroad Company, owned by the claimant, is designated as a mail route from Milwaukee, Wis., to Republic, Mich., at a fixed rate of compensation. Subsequently the road is extended to Champion, Mich., a distance of 8.89 miles. December 1, 1890, an order is sent to the general manager of the road by the Post-Office Department fixing the rate of compensation between Milwaukee, Wis., and Champion, Mi,ch., at $132.53 per mile. Two days later an order is issued confining this rate of compensation to the extension. Claimant continues to carry the mails and sues for the difference between the former rate allowed between Milwaukee and Republic and that allowed on the extension.</p>