Volume 52 — Court of Claims Reports

The Reporter’s statement of the case: The following are the facts of the case as found by the court: I. On and previous to the 10th day of September, 1914,. the claimant was a first lieutenant in the Medical Reserve Corps of the United States Army and owned a horse, which he used in the military service. II.

The Reporter's statement of the case: The facts of the case and the grounds of said motion are sufficiently set forth in the opinion of the court. Section 4 of the act of 1891 made it the duty of the Attorney General to defend the interests of the Government and the Indians.

The Reporter's statement of the case: This is a claim for additional pay of a naval officer at the rates prescribed by law for an aid to a rear admiral.

<p>In the following cases the parties were represented by the same counsel as in the preceding case of Knox v. United States:</p>

<p> On the Proofs. </p> <p>Paymaster's clerk; mileage. — This is a claim of a paymaster’s cleric in the Navy for mileage under an appointment by the Secretary of the Navy in which the plaintiff was required to proceed to Newport, R. I., at his own expense.</p> <p>Same. — The right of an officer of the Navy (which includes paymaster’s clerics) to the emoluments and allowances pertaining to his office and prescribed by the statute is fixed, and the appointing power can not attach conditions which have the effect of depriving him of what the law authorizes him to receive.</p> <p>Appointment. — Plaintiff having reported to the Mare Island Navy Yard as ordered,. and being found qualified, accepted the appointment and executed the oath of office, was from that date “holding appointment in accordance with law,” as required by the act of June 24, 1910, 36 Stat., 606.</p> <p>Statutes construed. — The act of March 3, 1901, 31 Stat., 1029, repeals section 1506, Revised Statutes, only as to the amount per mile allowed to officers for mileage, but does not repeal the provision that “ no officer shall be paid mileage except for travel actually performed at his own expense and in obedience to orders.”</p>

The Reporter’s statement of the case: The facts of the case are sufficiently set forth in the opinion of the court. It is difficult to see any reasonable ground for the view that a paymaster’s clerk who was at the earliest moment examined for promotion to the grade of chief pay clerk was not “ advanced in grade or rank pursuant to law,” but that his appointment as a chief pay clerk was an original entry into the service.

The Ref Grier’s statement of the case: The facts of the case and the averments of the petition to which defendants demur are sufficiently set forth in the opinion of the court. In this case the issue of law is a. very narrow one and it can best be considered by looking first to the question as to what the obligation of the railroad company is towards the United States with respect to furnishing transportation based upon land grants ma'de to the road.

The Reporter's statement of the case: Since the territorial act of 1881 the right to acquire a specified amount of the flow of nonnavigable streams for beneficial purposes has been recognized by the legislature. S. Dak. Stats. 1905, p. 201; 1907, p. 378. An appropriation is effected by formal notice of intention to divert a specified amount of water for specified purposes, followed by diligent construction and completion of necessary work preparatory to the use of the water.

<p>The Reporter’s statement of the case:</p>

<p>The Reporter’s statement of the case:</p>

The Reporter's statement of the case: The facts of the case and the grounds of claimant’s motion are sufficiently set forth in the opinion of the court.

The Reporter’s statement of the case The facts of the case are sufficiently set forth in the opinion of the court. The books of account if regularly kept and admissible under the rules of evidence would not be proof of ownership of the parties at the time the cotton was taken; they would at the most be corroborative evidence to show dealings of the parties or like matters. However, they are inadmissible for any purpose whatever.

The Reporter's statement of the case: The facts of the case and the averments of the petition to which the defendants demur are sufficiently set forth in the opinion of the court.

The Reporter's statement of the case: The facts of the case and the grounds of claimant’s motion are sufficiently set forth in the opinion of the court. If this act (Mar. 3,1885) be read with the findings in this case, the claim is literally within the act.

<p>The lief or ter & statement of the case:</p>

The Reporter's statement of the case. By the act of August 5, 1909, a special excise tax was imposed upon the privilege of carrying on business by corporations. It was in reality a license to carry on business.

<p>The Reporter's statement of the case:</p>

The BefortePs statement of the case: The facts of the case are sufficiently set forth in the opinion of the court. Held: “ It will be observed that the duties imposed in section 29 have relation to two classes: First, legacies or distributive shares passing by death and arising from personal property; and, second, any personal property or interest therein transferred by deed, grant, bargain, sale, or gift, to take effect in possession or enjoyment…

The Reporter's statement of the case: By the land-grant statute the railroad companies received large and valuable tracts of land, and in return they were to transport Government property and troops free or at a reduced rate. The word “ troops ” as used in the statute was certainly never intended in its narrow sense, but was intended to mean the military forces of the United States.

<p> On the Proofs. </p> <p>"Navy pay; promotion; statutory construction. — Where a lieutenant in the Navy became eligible for promotion to the next higher grade and upon examination was found professionally qualified but physically disqualified, and later when the physical defect was remedied was nominated as a lieutenant commander from the date when the vacancy occurred, he is entitled to the pay of the higher grade for constructive service from the date of eligibility to promotion and was advanced in grade or rank “ pursuant to law ” under the act of March 4, 1913 (37 Stat., 892).</p> <p>Aid; additional pay. — Where the officer after the date of eligibility to promotion and before the date of his commission as a lieutenant commander served as an aid to a division commander of the Atlantic Fleet, he is entitled to the additional pay as aid, as during the period of service he in fact held the grade of lieutenant. Know case, ante, p. 22.</p>

The Reporter's statement of the case: The act of March 3, 1885, 23 Stat., 350, clearly embraces a case of this character and entitles the claimant, to recover the value of the property destroyed. The total value of the property lost by the claimant as contained in an inventory carefully prepared by himself and supported by the testimony of himself and wife is $3,216.

The Reporter's statement of tlie case: The case is in all essential respects identical with Eolthaus v. United States, No. 28332, no opinion. Holthaus served by oral order as clerk to the commanding officer of the Marine Barracks, Washington, D. C., and this court held him entitled to extra-duty pay therefor. That case is discussed and was followed in Narhle's case, 14 Comp. Dec. 152. The comptroller appears to have overlooked those cases in rejecting this.

The Reporter’s statement of the case: Since the Chicago, Burlington & Quincy Railroad Co.’s case was decided it has been held, even for… Held: even for the purpose of the penal clauses of the interstate-commerce law, that when one shipper gives to a railroad company four-months notes, hearing interest, compensation so accepted is “less or different ” from that which is paid at the same (tariff) rates by other shippers who are required to make settlement at the end of each…

The Reporter's statement of the case: As it has been shown that the claimant- was delayed a period of thirty-six days by reason of the unreasonable delay on the part of the defendant in approving the contract, and as the damages are so great for exceeding the time limit which was a fixed date, namely, December 1, 1910, it is submitted under the decisions of this court that the claimant is entitled to a credit of thirty-six days for time so lost, and that in consequence for…

The Reporter's statement of the case: Under the statute in order for one to become entitled to the right granted by sections 2306 and 2307, Revised Statutes, three conditions must be met, viz: First, the soldier or sailor must have performed the requisite military service required by section 2304, Revised Statutes. Second, he must have remained loyal to the Government.

The Reporter's statement of the case: On plaintiff’s motion for a new trial and for amendment of the findings of fact the court amends the findings of fact by inserting therein an additional finding, as follows: X. On December 30, 1913, attorneys Lyon & Lyon, of Washington, D. C., acting for and in behalf of the administrator de bonis non cum testamento annexo of the estate of Edmund Dwight, deceased, late of Boston, Mass., filed with the Commissioner of Internal Revenue an…

The Reporter's statement of the case: The grounds of plaintiff’s motion are fully set forth in the opinion of the court.

The Reporter's statement of the case: In his opinion denying claimant’s application for repayment the Assistant Secretary, after setting forth the facts of the case, proceeds to state: “ It is earnestly insisted that as no map of definite location was filed, the road never constructed, and the grant forfeited, the land never was within the grant to the railroad company, and that therefore the price of the land should have been minimum instead of double minimum.” Reference is…

<p>The Reporters statement of the case:</p>

The Reporter's statement of the case: In 1896 the Supreme Court in 'United States v. New Torh, 160 U. S., S98, held that interest upon bond issues was a principal sum the United States agreed to refund, and that therefore such claims of the States should be allowed under the act of July 27,1861, supra.

The Reporter's statement of the case: The grounds of defendant’s motion are fully set forth in the opinion of the court; To the major part of the former judgment no exception is taken, but it is… Held: they are incompatible, and the claimant could not receive the compensation of both for the same period, but is entitled only to the salary of one. Badeau v. United States, 130 U. S., 439; Webster v. United States, 28 C. Cls., 25; Winchellv.

The Reporter’s statement of the case: Mr. George A. King for the plaintiff. King The following are the facts as found by the court: I. The claimant, Alfred J. Toulon, was appointed an assistant surgeon in the Navy to rank from November 29, 1907, and accepted the appointment and executed the oath of office December 4, 1907.

The Reporter’s statement of the case: The “ Postmaster General is authorized to add to the compensation paid for transportation on railroad routes * * * not exceeding five per centum thereof per annum.” No words Congress could have used would more clearly have expressed a permissive authority to add any percentage of the then existing compensation within the maximum he deemed proper. On the other hand, the limitation placed upon the authority thus conferred is mandatory.

The Reporter's statement of the case: Congress, on March 3, 1849, declared eight conditions under which horses lost in the military service should be paid for and reenacted this in the Revised Statutes. This contained no limitation of its scope either to peace or war.

The Reporter's statement of the case: The facts of the case and the grounds of plaintiff’s motion are sufficiently set forth in the… Held: 13 Comp. Dec., 844: “Acting assistant or contract surgeons are ‘ officers ’ within the meaning of that term as used in the act of June 12, 1906, providing for the ‘ expenses of the interment of officers killed in action or who die when on duty in the field or at military posts or on 'the frontier, or when traveling under orders, and…

The Reporter's statement of the case. It is sometimes asserted that Sun Printing Association v. Moore, 183 U. S., 642, holds that the literal expression of the parties in the contract, not their ultimate intent, must determine whether they have provided for liquidated damages or a penalty. This is a misapprehension. The contract there fixed the amount to be paid upon failure to return a rented yacht. The court upheld the claim for the amount so fixed.

The Reporter’s statement of tbe case: The following are the facts of the case as found by the court: I. A contract was signed on May 5, 1903, between the United States, acting through Capt. William J. Barden, Corps of Engineers, United States Army, and the claimant^ and approved by the Chief of Engineers, United States Army, on May 16, 1903, whereby the claimant agreed to construct a portion of the work on the Colbert Shoals Canal on the Tennessee River in Alabama.

The Reporter’s statement of the case: The allegations of the petition, to which defendants demur, will be found fully set forth in the opinion of the court. The act of Congress confers jurisdiction on this court in language plain and explicit, and means just what it says.

The Reporter’s statement of tbe case: Tbe following are tbe facts of tbe case as found by tbe court: I. On June 29, 1907, a written contract was entered into between tbe claimant, Carstens Packing Company, a corporation organized and existing under the laws of tbe State of Washington, and tbe United States, a copy of which contract is attached to tbe petition herein.

The Reporter’s statement of the case: The New J ersey law does not govern in this case, because it is in conflict with section 3737, Bevised Statutes, which annuls a contract with the United States upon the assignment of it; that rent's reserved by a lease subsequent to a mortgage, not being in existence at the time of the mortgage, are not conveyed by foreclosure of it; that these rents were not transferred by the sheriff’s deed, because they had previously accrued, and…

The Reporter’s statement of the case: The following are the facts of the case as found by the court: I. On March 21, 1893, a contract was made between J. B. & W. L. Killebrew, a copartnership, and the United States, subject to the approval of the Chief of Engineers, United States Army, whereby the said firm agreed to furnish and deliver for use in public improvements on the Mississippi Biver about 300,000 cubic yards of stone upon the conditions stated therein.

The Reporter's statement of the case: The amount of material dredged was to be determined by its being “ measured in place ” — that is, within the prescribed lines fixed by the engineer officer — the method of measurement being to make a survey before beginning work and another after the work was completed, and the final payment therefor was to be based entirely upon the difference between the survey made before beginning work and the final survey.

The Reporter’s statement of the case: At common law a tenant was not impliedly liable for deterioration of the premises from the ordinary wear and tear incident to their reasonable use, or to make substantial and lasting repairs, such as are usually called general repairs.

The Reporter's statement of the case: The adjudication of the validity and pioneership of the Brothers patent in suit by the Court of Appeals for the Second Circuit, 223 Fed., 359, removes the necessity for considering many of the questions which ordinarily arise in patent infringement litigation, including a discussion of the prior art patents.

The Reporter'’s statemént of the case: What plaintiff did was just what anybody else would have done where he was dealing with an agent whose powers were limited — it took what it could get under the restrictions imposed on the disbursing officers and then brought one suit against the principal for the aggregate of the improper deductions.

The Reporter's statement of the case: The facts of the case, and the grounds for defendants’ motion are sufficiently set forth in the opinion of the court. The universal practice covering a long period of time has been to require the railroad performing mail service to deliver mails to and take them from intermediate post offices on the route whenever such office is located less than 80 rods from the railroad station at which the company has an agent or other representative.

The Reporter's statement of the case: The fact? of the case are fully set forth in the opinion of the court Aside from any question of… Held: as a matter of law, that, in the face of the transfer of the Sprankle title and Quinn’s adverse application, the alleged error could not be corrected, and that the operations of the coal company on the land were not an obstacle to purchase by Quinn, inasmuch as the coal company had not seasonably asserted claim to the land under the…

The Reporter's statement of the case: The facts of the case and the grounds for the parties’ motions are sufficiently set forth in the opinion of the court. Held: “ But the error in entering judgment in Ripley’s favor as to any of these items, and the propriety of disallowing the others for which he sued arises from the fact that the officer’s decision was binding. All these claims relate to matters which, under the contract, were submitted to the engineer.