Volume 48 — Court of Claims Reports

The Reporters’ statement of tbe case: Tbe following are the facts of the, case as found by tbe court: I. Tbe claimant, Jane C. Ten Brook, is the widow of Capt. William L. Ten Brook, deceased. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The returns from the War Department show the military record of the claimant to be as follows: Thomas J. Cray-croft was enrolled June 12, 1863, at Louisville, Ky., for three years, mustered in as a sergeant in Company B, Thirty-fourth Kentucky Infantry, September 10,1863.

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 a resident of the State of Michigan, and is the sole owner of the claim sued on, never having sold or assigned the same or any part thereof to any person or persons. II.

The Befort&rP statement of the case: The following are the facts of the case as found by the court: I. The claimant herein, Reuben B. Lyon, is the duly appointed executor of the estate of James B. Lybn, deceased, and as such prosecutes this action. II.

The Reporter's statement of the case: The allegations- of the petition will be found sufficiently stated in the opinion of the court. The liability for debt arising from the personal obligation does not pass with the ceded territory, unless stipulated for in the treaty of cession.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant herein is a corporation organized under the laws of the State of Maryland. II.

<p>The Reporters' statement of the case:</p> <p>The grounds for the motion will be found in the opinion of the court.</p>

The Reporters’ statement of the case: The facts upon which this motion of the defendants is grounded will be found set forth in the opinion of the court.

Tlie. Reporters' statement of the case: The following bill was referred to the court by resolution of the United States Senate March 2, 1907, under the act of Congress approved March 3, 1887: “ [S. 374, Fifty-ninth Congress, first session.] “A BILL For the relief of T. L. Love. “ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to…

The Reporters’ statement of the case: The following are the facts of this case as found by the court: I. Plaintiff is the administrator of the estate of Benjamin B. Woog, deceased, who was a first lieutenant in the United States Marine Corps from July 1, 1899, to August 1, 1905. II. On June 20, 1904, the Secretary of the Navy , authorized the establishment of post exchanges at all marine barracks except where post traders were established.

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

The Reporters’ statement of the case: The following are the facts as found by the court: I. The claimant, Union Pacific Railroad Co., is a corporation, duly organized under and by virtue of the laws of the State of Utah, and was such corporation at the time of performing all the services embraced in this suit; and now is, and during all the times hereinafter mentioned was, engaged as a common carrier in the carriage and transportation of passengers and freight in and through…

The Reporters’ statement of the case: The following are the facts as found by the court: I. The claimant, William A. Moore, is the father of John K. Moore, late captain, Fifteenth Infantry, United States Army, and was designated by said John K. Moore as the person to receive the six months’ death benefit. II. Prior to the summer of 1908, said Capt. John K. Moore had been on duty in the Philippine Islands.

The Reporters' statement of tbe case: The following are the facts of the case as found by the court: I. The claimant, Union Pacific Pailroad Co., is a corporation, duly organized under and by virtue of the laws of the State of Utah, and was such corporation at the time of performing all the services embraced in this suit, and now is, and during all the times hereinafter mentioned was, engaged as a common carrier in the carriage and transportation of passengers and freight in…

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant, Joseph E. McDonald, was appointed an assistant paymaster in the Navy with the rank of ensign on January 25,1906, and attained the rank of lieutenant, junior grade, July 30, 1908, and was such assistant paymaster with the rank of lieutenant, junior grade, during the period covered by this claim. II.

The Reporters1 statement of the case: The following are the facts of the case as found by the court: I. The claimants are, and at the times hereinafter stated were, citizens of the United States and the State of California, and at such times they were partners in business under the firm name of J. G. and I. N. Day. II.

The Reporters’ statement of the case: The grounds upon which the defendants’ motion was placed 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, Samuel Van Leer, was during the time covered by this claim a first lieutenant of Cavalry in the United States Army. II.

The Reporters’ statement of the case: The following are the facts as found by the court: I. Claimant is a corporation organized under the laws of ■file State of Illinois.

The Reporters’’ statement of the case: It being held that the court had not jurisdiction of the case, no findings were filed; but the facts so far as necessary to an understanding of the jurisdictional question will be found stated in the opinion of the court. The court has jurisdiction in this case, because the action is ex contraotu and does not sound in tort.

The Reporters'1 statement of the case: The following are the facts of the case as found by the court: I. William Frye White, the claimant herein, is a citizen of the United States and a resident at the time of the filing of the amended petition herein of the District of Columbia, and is now a resident of Boston, Mass.

The Reporters' statement of the case: The following are the facts of the case as found by the court: i I. On June 27, 1908, Harry C. Kilmer, the claimant, entered into a written contract with the United States, through Capt. H. L. Pettus, quartermaster, United States Army, whereby the claimant agreed to furnish all material and labor necessary for the construction and completion of concrete, curbing, sewer pipe, drains, catch basins, macadam roads, brick gutters, and brick…

The Reporters’ statement of the case: The following facts of the case as found by the court: I. A contract was entered into on the 12th day of April, 1905, between the Edward F. Fonder Co., of Philadelphia, the claimant, and Maj. O. M. Mitcham, Ordnance Department, United States Army, for the construction of 12 buildings at the United States powder depot near Dover, N. J., as follows, to wit: 1 wheel and dynamo house-$4,500 1 storehouse for nitrate of soda- 9, 000 5…

The Reporters’ statement of tbe case: The following are the facts as found by the court: I. At the time of the depredation hereinafter stated the claimant’s decedent was a citizen of the United States. II. On or about August 7, 1870, in Valencia County, N. Mex., Indians belonging to the Navajo Tribe of Indians took and drove away property of the kind and character described in the petition which at the time and place of taking was reasonably worth the sum of $618.

The Reporters'1 statement of the case: The evidence to establish jurisdiction upon which the claimant relied will be found set forth in the opinion of the court.

<p> On the Proofs. </p> <p>Apaches known as Nana’s Band come into white settlements seizing property and committing murders. The men of the region arm and organize and drive the Indians out. The Indians succeed, however, in capturing much property from the pursuing party,</p> <p>I. Where residents organize to protect the inhabitants oí the country against depredating Indians, and rwt for purposes oí war, it was defense against individual depredators and not war against a tribe.</p> <p>II. The Indian defense of “just cause or provocation” is not good where individual members of a tribe invaded the homes of the whites and took the initiative in robbing people who were not molesting them. Where the whites had cause to defend, the Indians had no right to come into a white settlement and seize property and murder those who resisted.</p>

The Reporters’ statement of the ease: The following are the facts of the case as found by the court: I. The claimant, the Southern Pacific Co., is a corporation duly created, organized, and existing under and by virtue of the laws of the State of Kentucky, and was such corporation at the several times of performing all the services embraced in this suit; and now is, and during all the times hereinafter mentioned was, engaged as a common carrier, of both passengers and…

The Reporters5 statement of the case: The following are the facts of the case as found by the report: I. On August 15, 1901, the United States, by Mordecai T. Endicott, Chief of the Bureau of Yards and Docks, in the Navy Department, published an advertisement calling for bids for the construction of a coaling plant at the New York Navy Yard, a true copy of which appears at the head of Specification 1182, in Exhibit 1, attached to the amended petition herein.

<p> On the defendants' Motion. </p> <p>A hill referred by the Senate under the Tucker Act is for an “ accounting ” only. The question in the case is whether the reference of the bill by the Senate confers jurisdiction upon the court.</p> <p>I. The Tuclcer Act, 3rd March, 1887 (24 Stat. L., p. 505, sec. 14), provides only for the reference of bills containing appropriations for the payment either of a claim against the United States, legal or equitable, or.for a grant, gift, or bounty; and such a bill must be “ pending ” before Congress. A bill which provides only for an “ accounting ” is one of which the court does not have jurisdiction. The cases reviewed.</p> <p>II. It is not always the duty of a court to be technical, but where there is nothing in a bill or before Congress involving payment of a claim the court can not supply the vital omission.</p>

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

The Reporter's statement of the case: The following is the bill referred to the court by the «Senate.

The Reporters’ statement of the case: The following is the bill referred and the court’s finding of the facts: “A bill for the relief of the Jefferson Lime Company. “Be it enacted by the Senate and Rouse of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay to the Jefferson Lime Company, a corporation of Butte, Montana, out of any money in the Treasury not otherwise…

The Reporters’ statement of the case: The allegations of the petition demurred to are sufficiently-set forth in the opinion of the court. The maintenance charge, 40 cents per annum per acre, for this same period for which the $20,196.92 interest and compound interest is charged, would have been for the 16,200 acres, $6,480, which the Government never received if no water was delivered during the irrigation season of 1906.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. On December 20, 1899, Maj. William T. Bussell, Corps of Engineers, United States Army, by authority of the Secretary of War, advertised for sealed proposals for building Locks and Dams Nos. 4, 5, and 6, Warrior River, Ala.

The Reporters’ statement of the case: The following bill was referred to the court on April 15, 1910, by resolution of the House of 'Representatives, under the act of Congress approved March 3, 1887, known as the Tucker Act: “A bill for the relief of Luster P. Chester and Freeland Chester, and Luster P. Chester and Freeland Chester, executors of Thomas R. Chester. “ Be it enacted by the Senate and House of Representatives of the United States of America in Congress…

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Walter B. Izard, was during the period covered by this claim a paymaster, of more than 20 years’ service, in the United States Navy. II. Prior to July 10, 1909, claimant was on shore duty beyond seas, at the Navy pay office, Manila, Philippine Islands.

<p> On the defendants Demurrer. </p> <p>The petition alleges tliat the claimant was compelled to pay $2.50 per acre for certain public land when the lawful price thereof was only $1.25; that the Secretary of the Interior has held that the lawful price of lands of the same status is $2.50 per aero and lias refused repayment in such eases. There is no averment in the petition that this claim has been presented to the Secretary.</p> <p>I.The Act 26th March, 1908 ( 35 Stat. L., p. 48), provides that where purchase moneys were paid under any public-land law in excess of the amount the party was lawfully required to pay “ such excess shall be repaid- to such person ” “ inhere it shall appear to the satisfaction of the Secretary of the Interior ” that the party has made such a payment.</p> <p>II.It has been determined by the Supreme Court in the case of Medbury v. United States (173 U. S., 492) that under the Act 16th June, 1880 (21 Stat. L., p. 287), this court has jurisdiction to review the action of the Secretary of the Interior as to the proper construction to be given to the statute, but that upon all questions of fact Ms decision is conclusive. There is no material difference between that statute and the one now under review in this case.</p> <p>III.But before this court can entertain jurisdiction of any suit under the act, 1908, to recover back money paid for public lands in excess of the amount the party was lawfully required to pay, it must appear that the question has been presented to the Secretary of the Interior and that his decision upon the facts has been made. The court can not try the facts in such a case nor entertain jurisdiction before the claim has been presented to the Secretary.</p>

The Reporters’ statement of tbe case: The history of this litigation and an analysis of the various motions which have delayed the final disposition of the case, set forth in the opinion of the court.

<p> On the defendants'1 Motion. </p> <p>The defendants move to dismiss the petition on a number of grounds, chief of which are that proof of the claimant’s representative character was not filed with the petition as required by rule 34; and that the certificate of a referee in bankruptcy is incompetent to prove that the claimant was duly appointed trustee.</p> <p>I. Rule 34 requires that the representative character of the party who brings an action in this court shall be filed with the petition in the manner prescribed; but this does not imply that proof of the appointment is an integral part of the petition, or that failure to file the proof at the time of filing the petition is fatal.</p> <p>II. The certificate of a referee in bankruptcy is competent evidence to show that a party has been appointed trustee in bankruptcy.</p> <p>III. The bankruptcy act 1st July, 1898, as amended by tbe act 5tb February, 1903, makes tbe appointment of a trustee in bankruptcy by a referee proper. Referees take tbe same powers in certain matters as that prescribed for judges, and may appoint trustees where creditors do not.</p>

The Reporters’’ statement of the case: No findings of fact were filed in this case, but all the essential facts will be found stated in the opinion of the court.

The Reporters’ statement of the case*: On February 21, 1911, Senate bill 10033, Sixty-first Congress, was referred to this court by resolution of the United States Senate for findings of fact under the terms of the act approved March 3, 1887.

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

The Reporter’s statement of the case: The allegations of the petition demurred to will be found stated in the opinion of the court.

The Reporters'1 statement of the case: The allegations of the petition will be found stated in the opinion of the court. This grant of right is a new promise which relieves the claim of the bar of limitation. The scope of the act of March 4, 1907, is broad enough to include this claim. If the courts in a test case of any class decide that a liability exists to a claimant, Congress in this act directs the allowance of all similar claims.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. In the year 1904 the Government of the United States needed wharves in connection with its naval station, then established at Guantanamo Bay, one of which was desired at the southwest corner of Toro Cay.

The Reporters’ statement of the case: The allegations of the petition will be found set forth in the opinion of the court. Whenever the act of the Government produces a necessary injury which, from the facts and the circumstances, was the open, notorious, visible, and natural result, then a taking may be presumed by the court, and under the doctrine of implied contract a compensation may be given.

The Reporters’ statement of the case: The following are the facts of the case as found by the court : I. Heretofore, to wit, on the 4th of April, 1903, Lieut.

The Reporters' statement of the case: The following are the facts as found by the court: I. Claimants herein on the 17th day of August, 1903, entered into a contract with the United States, as set forth in Exhibit A to the petition herein, in accordance with the specifications constituting a part of said contract, of which contract the letter constituting Exhibit C was also a part. II.

The Reporters’ statement of the case: The grounds upon which the motion stands will be found set forth in the opinion of the court.

<p> On the claimant's Motion. </p> <p>The claimant moves for a call on tlie Secretary of the Treasury for certified copies of certain documentary evidence described in the motion and alleged to be among the files of the department. The defendants object to parts of the proposed call as merely fishing for evidence and that some of the letters and reports called for are only supposed to be relevant and material. They also object to the want of more specific dates.</p> <p>I. Calls upon the Executive Departments for documentary evidence should not be allowed where the parties do not specify or know what they want, or where they are so general that they throw the responsibility of selecting the documentary evidence upon the clerks of the departments, or where they are presumably in the party’s possession.</p> <p>II. A call under the statute being in the nature of a writ of subpoena duces tecum is indispensable to the administration of justice. Calls upon the departments being necessary and vital to the rights of litigants must be respected, and considerations of inconvenience must give way to the paramount rights of parties.</p> <p>III. There must be sufficient particularity in a call on an Executive Department to enable an intelligent clerk in the ordinary discharge of his duty to find the record. The responsibility of determining what is relevant can not be thrown upon the officers of a department. The evidence must appear on the face of the call to be relevant, material, and competent.</p> <p>IV. A call for correspondence between the department and its agents with relation to other contracts, if not obviously incompetent and irrelevant, may be allowed to show that the other contractors were guilty of the delay and that the claimant was compelled to wait for them. A number of cases stated by the court where calls may be allowed.</p>

The Reporters’ statement of the case: On the 21st day of February, 1911, the United States Senate, by resolution, referred to the court,… Held: át New York on April 2, 1903, k quorum being present, a resolution was adopted authorizing the officers of the company to accept, under its corporate seal, the conditions of the Navy Department for landing the cables of the company at Midway and Guam, as contained, respectively, in the two letters of the Navy Department of March 14,…

<p>The Reporters' statement of the case:</p> <p>The grounds for the motion appear in the opinion of the court.</p>

The Reporter's statement of the case: The following are the facts of the case as found by the court: I. The Post Office Department on April 20, 1903, authorized the establishment of rural mail service from the Green-ville (N. Y.) post office. Two routes specifically described were established and designated as routes Nos. 1 and 2.

On the Proofs. The Reporter’s statement of the case: This is a claim for use and occupation of blacksmith shop and boiler-making establishment during the year 1865.