Volume 45 — Court of Claims Reports

The Reporters'1 statement of the case : The following are the facts of the case as found by the court: I. The claimant, Esther Rousseau, is now and was during-all the times mentioned in these findings, and particularly during the years 1894,1895,1896,1897, and 1898, a member of the Sioux tribe of Indians, and carried on the rolls of the United States Government at the Cheyenne River Agency, S. Dak., as a Sioux Indian, and a resident upon the Cheyenne River Indian Reservation…

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The sloop Ilirarn, whereof Sylvester Baldwin was then master, sailed on a commercial voyage December 31, 1796, from New York bound for Kingston, Jamaica.

<p> On the Proofs. </p> <p>The Post-Office regulations provide that leaves oí absence may he granted to inspectors for a period not exceeding twenty days in each year; if granted for a greater length of time the absence is to be without pay. The claimant sues for the deceased inspector’s pay subsequent to the twenty days’ leave.</p> <p>I.A post-office inspector’s relinquishment of his salary can not be regarded as voluntary; but the rule does not apply to a case where he is seeking to recover pay to which he is not entitled.</p> <p>II.An employee of the Government can not recover compensation-where the head of a department, having power to discharge-furloughed him without pay.</p> <p>III. The theory of such cases is that a furlough without pay is in effect a limited dismissal.</p> <p>IV. The head of an executive department is limited in what he does: by the law; but he need not show express statutory authority for an administrative detail incident to a power conferred.</p>

The Reporters’ statement of the case: The averments of the petition to which the defendants demurred will be found sufficiently set forth in the opinion of the court.

The Ref orters1 statement of the case: The following are the facts of the case as found by the court: I. The claimant, Edwin M. Keatley, was clerk of the United States circuit and district courts of West Virginia from July 1. 1903, to December 31, 1908. II.

The Reporters' statement of tbe case: The following are the facts of the case as found by the court: I. On February 20,1889, the claimant enlisted as a private in Company A, Baltimore Light Infantry, Maryland National Guard, and was discharged therefrom February 19, 1892.

The Reporters1 statement of the case: The following are the facts of the case as found by the court: The first muster and pay roll of Company B, Twenty-third Regiment Kentucky Volunteers, on file in the Treasury Department, is dated December 31, 1861. On this roll the claimant’s decedent, George W. Northup, appears as captain, and the roll shows him joined for service and enrolled at the general rendezvous September 12, 1861.

The Reporters’ statement of tbe case: Tbe following are tbe facts of tbe case as found by the court: ' I. The claimant was employed as special assistant to the United States attorney for the central district of tbe Indian Territory by a letter of appointment dated August 23, 1906, and signed by the Attorney-General, for six months commencing September 1, 1906, to be compensated at $150 a month.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. On June 16, 1902, the claimant herein was appointed by the Acting Commissioner of Indian Affairs to the position of tinner in the Carlisle School, Pennsylvania, at a salary of $600 per annum, the notice of appointment being as follows: “ Jhhe 16, 1902. “ Thomas D. ColliNS, “ 1805 Sixth street NW., Washington, D. O. “ Sie : You are hereby appointed, under the conditions '…

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant’s testator was at the dates hereinafter set forth and… Held: “ Every great public improvement must, almost of necessity, more or less affect individual convenience and property; and when the injury sustained is remote and consequential, it is damnum absque injuria, and is to be borne as a part of the price to be paid for the advantages of the social condition.

The Reporters'1 statement of the case: The allegations of the petition demurred to will be found stated 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, Macomb K. Elmer, was appointed from civil life an assistant surgeon in the navy with the rank of lieutenant, junior grade, July 18, 1900, and served as such during the period covered by this claim.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. Nathaniel H. McLean, whose widow is the claimant, was, prior to the 23d day of July, 1864, a major and assistant adjutant-general in the United States Army. On that date he was separated from the service by receipt of notice of the acceptance of his resignation. II.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The original petition in case No. 23199 was filed in this court by the Cherokee Nation on February 20, 1903, by its attorneys, Finkelnburg, Nagel & Kirby and Edgar Smith, under a certain contract bearing date January 16, 1903, as follows: “ Know all men by these presents, that this contract, executed and approved in the manner prescribed in sections 2103 to 2106, both…

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Michael O’Sullivan, is a citizen of the United States, and was such citizen on the 12th day of August, 1903, when suit was filed herein. II.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. This suit is brought under the provisions of a special . act of Congress set out in full in claimant’s petition, to which reference is here made. II.

The Reporters’ statement of the case: This case was dismissed under the decision in IT of eld (36 C. Cls. B,., 230). It is now heard and finally disposed of on the claimant’s motion for a new trial.

The Reporters' statement of the case: The grounds of the claimant’s motion sufficiently 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 is a citizen of the United States and is a captain in the United States Revenue-Cutter Service. II. On December 4, 1907, the claimant had served more than twenty continuous years in said service, and his pay, including longevity pay, was $3,500. (32 Stat.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The place where the depredation was committed was in the State of Nebraska and within the Sioux Indian country, and was described and defined in the fifth article of the treaty of Fort Laramie of September 17, 1851. It was also within the “ unceded Indian territory ” reserved by the sixteenth article of the treaty of April 29, 1868.

The Reporters’ statement of the case: This case was decided in 1908 and is reported in 43 C. Cls. P., 266. Subsequently to the entry of judgment the defendants' moved to amend the findings in numerous particulars, their motion extending to nearly all the findings. Subsequently to the filing of this motion, the claimant filed an appeal to the Supreme Court, although the judgment was nominally in his favor.

The Reporters'’ statement of the case: The following are the facts of the case as found by the court: I. Claimants are citizens of the United States, residing in the State of Oregon. In the years 1898, 1899, and 1900 they were partners in the business hereinafter described under the firm name of Normile, Fastabend & McGregor. II. On the 11th day of March, 1898, claimants entered into the written contract set forth in and made a part of the petition herein.

The Reporters'1 statement of tbe case: Tbe following are tbe facts of this case as found by tbe court: • I. On the 13th of June, 1904, tbe claimant was duly appointed a midshipman at the United States Naval Academy and entered upon and performed his duties as such midshipman until dismissed, as hereafter shown, on the 6th of February, 1906.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The ship Poll Gary, John Bessom, master, sailed on a commercial voyage February 10, 1799, from Norfolk, Va., bound for London, England.

The Reporters’ statement of the case: This case now comes before the court on exceptions filed by individuals to the report of the special commissioner, Guión Miller, esq., bearing date February 4, 1910. The nature of the exceptions will appear in the opinion of the court.

The Reporters’ statement of the case: Counsel for both parties in this case joined, in a motion for a reference to the auditor to examine and state an account between the parties, but action on the motion was suspended until the court .should hear and consider the questions of law involved, and for that purpose the motion was placed upon the law calendar. On the hearing, not only the motion, but the whole case was argued by counsel.

The Reporters’ statement of tbe case: Judgment was rendered in this case dismissing the petition May 20, 1909. No opinion was filed, the case really going off on the general proposition that the United States had discharged all their treaty obligations. The claimants then moved for a new trial and to amend the findings.

The Reporters' statement of the case: This is a claim for rent of and damage to a hotel property owned by the claimant in the town of Macclenny, Baker County, Fla., which was used as a yellow-fever hospital in the fall and winter of 1888, such use and occupation of said property alleged to have been at the instance and under the direction of the Marine-Hospital Service of the United States.

The Reporters’ statement of the case: The facts of the case appear in the opinion of the court. In the case of United States v. Bethlehem, Steel Go. (205 U. S., 105, 118), the Supreme Court held that language actually used by the parties at the time work was begun under a contract may properly be referred to as showing the meaning of terms used in the formal contract.

The Reporters1 statement of the case: The following are the facts of the case as found by the court: I. The claimant the Southern Railway Company is a corporation, incorporated under the laws of the State of Virginia. The claimant the British and Foreign Marine Insurance Company is a corporation, incorporated under the laws of the Kingdom of Great Britain and Ireland.

The Reporters'1 statement of tbe case: The following are the facts of the case as found by the court: I. At and prior to the dates hereinafter mentioned, petitioner and Neil Macleod and Henry Anthony Macleod were in partnership under the firm name of Macleod & Co., doing a general mercantile business in the Philippine Islands and in other parts of the Orient, with their head office at Manila, P. I., where they also transacted such business.

The Reporters' statement of the case: The facts set up in the claimant’s petition are sufficiently set forth 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. Claimant is a citizen of the United States and is a corporation existing under the laws of the State of Connecticut and is engaged in conducting a general shipping and transportation business and is the owner of the claims in question and has neither assigned nor sold them in whole or in part. II.

The Reporters' statement oí the case. The following are the facts of the case as found by the court: I. On May 27, 1868, commissioners on the part of the United States signed a treaty with the Osage Nation of Indians, at Drum Creek, Kans., by the terms of which the Lawrence, Leavenworth and Galveston Railroad Company would have acquired the Osage trust land and the Osage diminished reserve, comprising about 8,000,000 acres of land, for the price of less than 20 cents an…

The Reporters’ statement of the case. The grounds of the claimant’s motion will be found in the opinion of the court. 1. The report of the case is in 44 C. Cls. R., 469. In the actual necessity to make removals was included the legal necessity to make them in accordance with the statutes, and not contrary to them.

The Reporters'1 statement of the case: The following are the facts of the case as found by the court: I. During the time hereinafter mentioned the claimant was a letter carrier of the class entitled to a salary of $850 per annum at the post-office at Huntington, W. Va., II.

The Reporters'1 statement of the case : The following are the facts of the case as found by the court: I. The claimant is a citizen of the United States residing at Southport, N. C., and engaged in the business of contracting, and was so engaged in ‘said town on July 28, 1902. II.

The Reporters’ statement of the case: The facts alleged in the petition are sufficiently stated in the opinion of the court. Mr. Sidney M. Ballou opposed. Kinney, Ballou. Held: in its new form, liable to the rights of the original oAvner, or cestui que trust.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The plaintiffs are a confederated band of Ute Indians between whom and the Government of the United States the relation of guardian and ward has existed since February 2, 1848.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant company under date of September 26, 1906, entered into a contract with the United States (the material parts of which are set forth in the petition) to deliver at the Watervliet Arsenal within one hundred and twenty-five days from the date of said contract one turbo-generator for the sum of $6,500. II.

The Reporters' statement of the case: The facts set up in the petition sufficiently appear in the opinion of the court. The Supreme Court has held many times that save in case of clearly demonstrable error by the department it would not overturn a construction long held and acted upon. (United States v. Moore, 95 U. S., 760, 763.) So often has this principle been affirmed and applied that we know of no other more thoroughly established in our administrative law.

<p>The Reporters'1 statement of the case:</p> <p>The facts of the case appear in the opinion of the court.</p>

<p>The Reporters’ statement of the case:</p> <p>The facts of the case appear sufficiently 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. The claimant, Francis M. Furlong, was during the period covered by this claim an assistant surgeon in the navy, appointed from civil life, serving in his first five years. II.

<p>On the defendants’ Motion and the Countermotion of the Claimant.</p> <p>The defendants move to dismiss the claimant’s petition. There are a number of grounds specified, chief of which are that there was an agreement between the claimant and one McKay whereby he was to influence the passage of a legislative act conferring jurisdiction upon this court to hear the cause, in consideration of his receiving three-fifths of the recovery; and that the claimant fraudulently concealed such assignment, alleging in its petition “ that no assignment or transfer of said claim or any part thereof or interest therein has been made,” failing at the same time to disclose the secret agreement with McKay. The motion comes to a hearing on certain documentary evidence produced by "the defendants.</p> <p>I.There may be a distinction made between an unlawful agreement which forms a link in the claimant’s chain of title and one where it is merely collateral.</p> <p>II.At common law, prevailing in the District of Columbia, an agreement by an attorney to prosecute a suit at his own expense in consideration of receiving a certain proportion of what may be recovered is void for champerty. But the legal rights of the party are not forfeited by such an agreement and may be asserted irrespective of its invalidity.</p> <p>III.Contracts for the payment of a proportion of an amount recovered in case of success and nothing in ease of failure have been held to be lawful. But contracts for contingent compensation for obtaining legislation are void as against public policy.</p> <p>IV.It is well established that if any part of a consideration of a contract be contrary to public policy the whole contract falls, and it is immaterial whether anything improper be done or was expected by the assignor to be done.</p> <p>V.Compensation can not be recovered for any service rendered under a contract where the services would amount to an agreement to procure legislation by personal solicitation on the part of the agent.</p> <p>VI.The extent and legality of an assignment are open to inquiry where the proper plea of fraud is filed by the defendants.</p> <p>VII.The Kevised Statutes (§ 1080) provide that if any person practices any fraud against the United States in connection with the prosecution of a claim, he shall forfeit the same to the Government. The court can not declare such a forfeiture on a mere motion. The defendants must file a plea in the nature of a cross bill, setting up the matters constituting the fraud.</p> <p>VIII.The power to bring in parties not before the court who are alleged to have an interest in the cause of action has been repeatedly exercised.</p> <p>IX.Forfeitures are not favored, and the burden of proving fraud rests upon the party making such an allegation and continues there. But the court may, upon the refusal of a claimant to testify under the provisions of section 1080, suspend the proceeding. Forfeiture can be decreed at no time without proof satisfactory to the court that fraud or an attempt to commit the same has been established.</p> <p>X.The statute providing for the examination of a claimant recognizes the constitutional guaranties of the citizen; and the order of the court in permitting the examination of an interested party can not go beyond the statute.</p>

The Reporter's statement of the case: The facts of the case will be found sufficiently set forth in the opinion of the court. It is hardly necessary to quote authorities to sustain the contention that where a person has been unjustly suspended in the exercise of his official duties and the power having jurisdiction of him as an employee reinstates him that he is entitled to whatever emoluments are attached to the office during such period of suspension.

The Reporters’ statement of the case: In this case the defendants filed an answer presenting the question whether certain retained percentages which had been declared forfeited by the defendants should be regarded as liquidated damages or as penalty. The claimants demurred to this answer, and the case came to a hearing on the issue of law so framed. The facts set up by the defendants’ answer will be found set forth in the opinion of the court.

<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 tbe case: The following are the facts of the case as found by the court: I. The claimant, Edwin E. Marvin, was clerk of the district and circuit courts of the United States for the District of Connecticut from October 1, 1906, to June 30, 1909, duly qualified and acting. II.

The Reporters’ statement of tbe case: The following are the facts of the case as found by the court: I. The claimants, as partners, under the firm name and style of Henry W. Peabody & Co., did, on the 1st day of July, 1904, enter into the following contract for the supply of coal for the use of the Quartermaster’s Department, United States Army, during the fiscal year ending June 30, 1905: “ This agreement, entered into this first day of July, nineteen hundred and four,…

The Reporters'1 statement of the case: The following are the facts of the case as found by the court: I. Petitioner is a body corporate, duly incorporated under the laws of the State of Indiana, is a citizen of the United States, and is the owner of the claim herein sued upon, no part thereof having been sold or assigned to any person or corporation. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: 1. The brig Freemason, whereof George Bunker was then master, sailed on a commercial voyage June 7, 1797, from Baltimore, Md., bound to Bremen. While peacefully pursuing said voyage she was seized on the high seas on or about July 15, 1797, by the French privateer Dragon, Capt. Jean Eude, and conducted to the port of Paimpol, in France.

The Reporters’ statement of the case: This is a claim for supplies or stores alleged to have been taken by or furnished to the military forces of the United States for their use during the late civil war.

The Reporters’ statement of the case: This is a claim for pay and subsistence of certain soldiers alleged to have been furnished to the United States during the war for the suppression of the rebellion. On March 21, 1888, the United States Senate by resolution referred to the court a bill under the act of March 3, 1883, as amended by the act of March 3, 1887, in the following words: “ [Fiftieth Congress, first session.