| Ct. Cl. | Dec 15, 1869
Lead Opinion
delivered the opinion of the court:
This is an action brought upon the charter-party of the steamer Ben Franklin to recover a balance due, amounting, it is said, to $9,955.
The Assistant Attorney G-eneral has made the same objection to the maintenance of this action which has been taken of late in a number of others, and it is that while the claim presented in the petition is such as is ordinarily settled in an executive department, “ the evidence in the'case does not show that any such application has ever been made to any department of the government., whether with or withdut success, nor any action whatever thereon, 'without which action this court has no lawful jurisdiction of the case.” It is conceded by the claimant that neither the specific demand nor the original contract has ever been before an executive department. The ease presents, therefore, the naked question whether a claimant has a right to bring his action in this court without presenting his claim to the proper accounting officers of the government for payment — whether he may bring his action here with the same freedom that an ordinary creditor can sue an ordinary debtor in a court of law upon a demand arising on contract.
There are also other cases before the court where the parties plaintiff assume a position precisely opposite to that taken by the claimant here, insisting that a claim does not uaccrue” until it has been rejected by an executive department, and that the statute of limitations cannot be set up against them, although more than six years may have elapsed, before suit brought, from the time their services were performed or their
There are three statutory provisions which directly bear upon this point of jurisdiction:
1. The initial, creative act establishing this court, (10 Stat. L., p. 612, § 1,) thus defines it: “ The said court shall hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, witli the government of the United States, which may .be suggested to it by a petition filed therein •, and also all claims which may be referred to said court by either house of Congress. It shall be the duty of the claimant in all cases to set forth a full statement of the claim, and of the action thereon in Congress, or by any of the departments, if such action has been had.”
2. The act reconstituting the court provides (12 Stat. L., p. 765, § 10) “That every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement of the claim be filed in the court or transmitted to it under the provisions of this act within six years after the claim first accrues.”
3. The same act also provides (§ 7) £l That in all cases of final judgments by said court, or on appeal by the said Supreme Court where the same shall be affirmed in favor of the claimant, the sum due thereby shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims.”
The question seems to be embarrassed with this dilemma: if, on the one hand, a claim need not be presented to the proper department, but may be sued on here, then all the statutory checks and means by which the debts of the nation are examined, classified, and carried to the proper appropriations may be set at naught, and a general appropriation for claims be made to cover every debt of every department; if, on the other hand, a claim must be rejected by the proper executive department before suit can be brought, then the claim does not11 first aoornen under the statute of limitations till it has been rejected, and the statute does not begin to run when the debt becomes due.
It is indeed suggested that inasmuch as all demands on the
But I do not accept as inevitable the alternatives of this dilemma. There are two less difficult and equally effective constructions to be put upon the statute:
1. The court, by express terms, is clothed with jurisdiction of all actions u founded upon any contract, express or implied,? Such is the provision of the initial act of 1855, (§ 1.) But when we come to the provision for the payment of our judgments, it is given exclusively by the act of 1863, (§ 7,) and the relief is limited to uany general appropriation made by law for the payment and satisfaction of private claims? If these judgments when paid were carried to the specific appropriations made for the respective departments, as is the case with claims sent into the court by a Secretary under the Act 25th June, 1868, (15 Stat. L., p. 75,) there would be less reason for making a claimant go to the proper department in the first instance. But an appropriation for the payment of “private claims” means an appropriation for claims which the executive departments have rejected, or of which they have no jurisdiction. The appropriation is for debts which were not to be paid out of the specific appropriations. Therefore, though the court may entertain jurisdiction under the one statute before a claim has been presented to the proper department for payment out of the proper appropriation, yet the court must exact this before giving relief out of the general appropriation, under the other statute. The practical effect of such a construction will be that the claimant who, through ignorance or oversight, has failed to present his claim for executive action before bringing his suit, may still do so, pendente lite. If the claim be allowed the suit will be discontinued; if it be rejected the government will gain all the advantage of the executive investigation. Nothing will be gained or lost by either party through having it rejected at one time instead of another.
2. If this construction of the statutes cannot be maintained, I still think it will be sufficient for a claimant to present his claim to the proper department and bring suit without waiting
Either of these constructions will avoid tbe objection well urged by counsel, that a claimant while waiting for a department to act might lose bis right of action; either will save this court from going to the opposite extreme and holding that a claim fifty years old may be prosecuted notwithstanding the statute of limitations, if it has only been rejected by a department within six years; either will save to the government the advantages of having a claim examined by the department properly responsible for its allowance.
A majority of the court incline to the belief that the presentation of a claim to an executive department is not a prerequisite to jurisdiction. They think, also, that, the point being new, this case should be remanded, with leave to the claimant, after he shall have presented his claim to the proper department, to amend his petition and make the necessary proof. Before doing so, however, we have determined to look into the merits, so as to save to the party needless expenseand delay if our conclusion on the merits should be adverse.
Tbe action is brought upon a charter-party entered into at the city of Louisville on the 3d of March, 1863, between Captain John H. Ferry, assistant quartermaster, and one T. C. Sweeney, the owner of the steamer Ben. Franklin. The rate agreed upon was $175 a day. No definite time was named in the charter, and the defendants were at liberty to discharge the steamer at any place, allowing a reasonable time for her return to Louisville.
The claimant subsequently complained of the rate allowed, and the quartermaster at Louisville, by an endorsement on the application, directed that the boat be allowed $200 per day. She remained apparently under the control of Captain Ferry, and was borne upon his returns for the months of March and April, but was, in fact, paid at the rate of $200 per day only up to and including the 20th March, 1863.
The steamer next appears upon the Mississippi, under the control of Captain Charles Parsons, an assistant quartermaster at St. Louis. In what manner or by what authority she was transferred from the quartermaster at Louisville to the quarter
The agent of the owner, it appears, remonstrated at the rate allowed, and on the- 19th December a settlement is reported on the quartermaster’s accounts, for service from the 21st March to the 31st August, at $5 per day, and the amount allowed thus in settlement was also receipted for by the agent of the owner as “in full of the above account.”
There are two distinctive facts which separate this case from those in which a reduction has been ordered by the Quartermaster General and a receipt been given by the owners. The first is that the boat appears for several months in service in another military department, and neither the accounts stated by the quartermaster nor the receipts given by the owner refer to the original charter-party. That charter-party was for no fixed period, and might have been terminated at any moment. The quartermaster at St. Louis does not seem to have been aware of the charter-party, and the owner does not- seem to have relied upon it, and the agent who collected the boat’s accounts does not seem to have presented it. These circumstances imply that when the steamer passed from one military department to another the charter Avas rescinded. The second distinctive fact is, that after the rate had been fixed at $140 a day, and after this had been paid by the quartermaster and received by the claimant, and after the boat had left the service, a settlement was made whereby the defendants paid $5 a day for the past services of the boat, in accordance Avith an agreement made between the quartermaster and the claimant’s agent.
Illegal and arbitrary exactions cannot be upheld by a court of justice, but anything which looks like the final compromise of a doubtful case should always be maintained. In this case there is the undetermined period of the charter, the new field in which the boat is found, the absence of all reference to the contract in the accounts which passed between the parties, and the still more significant fact that the owner never appealed to the Quartermaster General, and, until this suit was brought, never questioned the finality of his agent’s settlement. Upon this evi
The judgment of the court is that the petition be dismissed.
Concurrence Opinion
concurring:
I do not think we have jurisdiction of this case, and hence I would dismiss the petition. It is a claim for army transportation, and the act of Congress of March 3,1817, (3 Stat. L., p. 366,) provides that all such accounts shall be submitted to the proper auditor or comptroller. The accounting bureaus were organized to settle accounts. The Court of Claims was established to adjudicate disputed claims. If we have jurisdiction of this case, we have the same of all accounts for the ordinary expenses of the government. This, I think, never was intended by Congress. The act of March 3,1797, (1 Stat. L., p. 512,) requires that an account in favor of a party shall be settled in the accounting department before it can be set off in a suit in which the Dnited States are plaintiffs. So the act of March 30,1868, (15 Stat. L., p. 1,) makes the action of the auditor and comptroller final and conclusive on the executive branch of the government, but subject to revision by Congress or the proper court. This necessarily implies there shall be a settlement first and a revision afterwards. The act of June 25,1868, (15 Stat. L., p. 76,) provides the methods by which such revision by this court shall be invoked and exercised, and describes the cases subject to-this revision to be such “as involve disputed facts or controverted questions of law.” Till it assume this character it is an account •, afterwards it is a claim, and cognizable by this court. To allow every creditor of the government his option to bring suit in the Court of Claims or have his account ad-adjusted at the department, would produce the wildest confusion in public accounts and overwhelm this court with business, oftentimes in a single day, which it could not dispatch in a year. We have no better means for adjusting accounts than the auditors and comptrollers have for trying and deciding judicial controversies. And if Congress had intended that each should exercise the functions of both, they would have provided the organization and machinery for each adapted to those ends. In the absence of any such provision I feel war
For these and other reasons I am for dismissing this petition.
Concurrence Opinion
concurring:
I fully concur with the Chief Justice on the question of jurisdiction. But a majority of my brethren having on this question held to the contrary, I have, out of deference to their opinion, consented to examine the case on the merits, (not in any degree waiving my opinion on the question of jurisdiction,) and agree with them in dismissing the petition on the merits.