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upon any regulation of an Executive Department 3 upon any contract expressed or implied, with the Government of the United States, 4 or for damages, liquidated or unliquidated, in cases not sounding in tort,5 in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable: Provided, however, That nothing in this section shall be construed as giving to the said court jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as 'war claims,'6 or to hear and determine other claims, which, prior to March third, eighteen hundred and eighty-seven, had been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same. Second. All set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court:7 Provided, That no suit against the Government of the United States, brought by any officer of the United States to recover fees for services alleged to have been performed for the United States, shall be allowed under this chapter until an account for said fees shall have been rendered and finally acted upon as required by law, unless the proper accounting officer of the Treasury fails to act finally thereon within six months after the account is received in said office." 8 This jurisdiction is concurrent with that of the District Courts over all claims not exceeding ten thousand dollars, except those to recover the fees, salary or compensation for official services of officers of the United States.9 An officer may sue in the Court of Claims to recover a salary allowed by an Act of Congress.10 The amount involved does not affect the jurisdiction.
3 The words, “regulation of an Executive Department,” rule made by the head of a department for its action when authorized by Congress to make such rule. A mere order of the President or the head of a Department is not a “regulation.” Harvey v. U. S., 3 Ct. Cl. 38; Maddux v. U. S., 20 Ct. Cl. 193. The construction of the phrase giving jurisdiction over actions upon contract, express or implied, or for damages, liquidated or unliquidated, in cases not sounding in tort, is explained in $$ 96, 96a, supra. An owner of bonds, assumed by the United States, may maintain an action in the Court of Claims to collect the amount of the same. Morrell v. U. S., 7 Ct. Cl. 421.
4 It has been said that to constitute an implied contract upon which a suit can be brought in the Court of Claims, “there must have been some consideration moving to the United States, or they must have received the money charged with a duty to pay it over; or the claimant must have had a lawful right to it when it was received, as in the case of money paid by mistake. Knote v. U. S., 95 U. S. 149, 157, 24 L. ed. 442, 444. See U. S. v. Great Falls Mfg. Co., 112 U. S. 645, 28 L. ed. 846; Great Falls Mfg. Co. v. At
torney General, 124 U. S. 581, 31 L. ed. 527; Paine Lumber Co. v. U. S., 55 Fed. 854.
5 With the exception of claims for the proceeds of captured or abandoned property and others arising under special statutes, the Court of Claims has no jurisdiction of claims upon torts committed by the United States, except where the claimant can waive the tort and sue upon an implied contract. U. S. R. S., $ 1059; Langford v. U. S., 101 U. S. 341, 25 L. ed. 1010; Nichols v. U. S., 7 Wall. 122, 19 L. ed. 125; Gibbons v. U. S., 8 Wall. 269, 19 L. ed. 453; Basso v. U. S., 239 U. S. 602, false imprisonment; Dennis v. U. S., 2 Ct. Cl. 210; Dykes v. U. S., 16 Ct. Cl. 869; Paine Lumber Co. v. U. S., 55 Fed. 854. The United States is not liable for injury resulting from the negligence of their officers to those who are not in a contractual or quasi contractual relation with them. German Bank of Memphis v. U. S., 148 U. S. 573, 37 L. ed. 564; Bigby v. U. S., 188 U. S. 400, 47 L. ed. 519; Gibson's Case, 29 Ct. Cl. 18; Hayward's Case, 30 Ct. Cl. 219, see supra, $ 96, except where a libel in personam can be filed in a District Court under Act of March 9, 1920, 41 St. at L. 525, quoted supra, $ 566a.
6 By the Act of March 4, 1915, ch. 140, $ 38, St. at L. 996. “From and after the passage and approval of this Act the jurisdiction of the Court of Claims shall not extend to or include any claim against the United States based upon or growing out of the destruction of any property or damage done to any property by the military or naval forces of the United States during the war for the suppression of the rebellion; nor to any claim for stores and supplies taken by or furnished to or for the use of the military or naval forces of the United States, nor to any claim for the value of any use and occupation of any Real Estate by the military or naval forces of the United States during said war; nor shall said Court of Claims have jurisdiction of any claim which is now barred by the provisions of any law of the United States." By the Act of March 3, 1863, ch. 120, § 3, 12 Stat. 820. March 3, 1911, ch. 231, § 162, 36 Stat. 1139 "The Court of Claims shall have jurisdiction to hear and determine the claims of those whose property was taken subsequent to June the first, eighteen hundred and sixty-five, under the provisions of the Act of Congress approved March twelfth, eighteen hundred and sixtythree, entitled 'An Act to provide for the collection of abandoned
property and for the prevention of frauds in insurrectionary districts within the United States,' and Acts amendatory thereof where the property so taken was sold and the net proceeds thereof were placed in the Treasury of the United States; and the Secretary of the Treasury shall return said net proceeds to the owners thereof, on the judgment of said court, and full jurisdiction is given to said court to adjudge said claims, any statutes of limitations to the contrary notwithstanding.” Comp. St. § 1153; O'Pry v. U. S., 249 U. S. 323; Thompson v. U. S., 246 U. S. 547, 38 Sup. Ct. 349, 62 L. ed. 876.
7"Upon the trial of any cause in which any set-off, counterclaim, claim for damages, or other demand is set up on the part of the Government against any person making claim against the Government in said court, the court shall hear and determine such claim or demand both for and against the Government and claimant; and if upon the whole case it finds that the claimant is indebted to the Government it shall render judgment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided by law. Any transcript of such judgment, filed in the clerk's office of any District or Circuit Court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court and be enforced as other judgments in such courts are enforced.” Jud. Code, $ 146, re-enacting U. S. R. S., § 1061.
The statute authorizing the Court of Claims to enter an affirmative judgment in favor of the United States against a suitor in the Court of Claims does not violate the Seventh Amendment of the Constitution. McElrath v. U. S., 102 U. S. 426, 440, 26 L. ed. 189, 192; 8. C., 12 Ct. Cl. 312. This right is as comprehensive as the similar rights given to the Crown under the British Act of 1860 regulating Petitions of Right. 23 and 24 Vict. 17, ch. 34; Roman v. U, S., 11 Ct. Cl. 761. See Delancey V. The Queen, 6 L. R. Exch, 286. The Court of Claims has jurisdiction to hear and determine a counter-claim by the United States for the proceeds of their property wrongfully sold by an insolvent debtor in a suit by his assignee in insolvency on a contract between the insolvent and the United States. McElrath v. U. 8., 102 U. S. 426, 26 L. ed. 189; U. 8. v. Burchard, 125 U. S. 176, 31 L. ed. 662. It has heen held that the United States may take an assignment from their judgment debtor, of a judgment held by him against another, and set off the same in a suit brought by
the latter upon an award of Congress, notwithstanding the fact that such suitor has assigned his award to a fourth person; provided, the set-off was acquired before notice of the assignment. Boehm v. U. 8., 21 Ct. C1. 290. When a suit on a claim was brought by a firm of three, it was held that the United States could not set off a judgment against two of them. Allen v. U. S., 17 Wall. 207, 21 L. ed. 553, 5 Ct. Cl. 339; Macauley v. U. S., 11 Ct. Ci. 693. After the Government has allowed a claim and payment in full, the Government, when gued for the balance, cannot set up as a counterclaim the amount so paid, on the ground that the assignment was irregularly executed. Macauley v. U. S., 11 Ct. Cl. 693. Where an officer of the navy, upon settlement of his accounts, claimed that he would not be concluded thereby and subsequently sued for a balance claimed by him, it was held that the United States were not bound by the settlement, and could obtain judgment for moneys improperly paid him in pur. suance thereof. Boehm v. U. S., 20 Ct. Cl. 142. If a claim is dismissed for want of jurisdiction, the counterclaim falls with it. McKnight v. U. S., 98 U. S. 179, 25 L. ed. 115, 13 Ct. Cl. 292.
8 Jud. Code, $ 145, 36 St. at L. 1136, 1137, re-enacting 24 St. at L. 505. Ordinarily, the action of the auditing department, in either allowing or rejecting a claim,
“The jurisdiction of the said court shall not extend to any claim against the Government not pending therein on December first, eighteen hundred and sixty-two, growing out of or dependent on any treaty stipulation entered into with foreign nations or with the Indian tribes." 11
not an essential prerequisite to the jurisdiction of the Court of Claims to hear it. U. S. v. Knox, 128 U. S. 230, 234, 32 L. ed. 465, 467. “But if such claims are presented to the department for allowance, and the department, in the exercise of its discretion, suspends action upon them until proper vouchers are furnished, or other reasonable requirements are complied with, the courts should not assume jurisdiction until final action is taken," unless there is unreasonable delay. U. S. v. Fletcher, 147 U. S. 661, 667, 37 L. ed. 321, 323, per Brown, J. A statute which confers exclusive · authority upon a public officer certain questions claims, deprives the Court of Claims of jurisdiction concerning these. U. S. v. Babcock, 250 U. S. 328, 39 Sup. Ct. 464, 63 L. ed. 1011; Alire v. U. S., 1 Ct. Cl. 233; s. C., 7 Ct. Cl. 27; Daily v. U. S., 17 Ct. Cl. 144; Bofinger v. U. S., 18 Ct. Cl. 148, 165; Chesapeake & 0. Ry. Co. v. U. S., 20 Ct. Cl. 49; Davidson v. U. S., 21 Ct. Cl. 298; Marshall v. U, S., 21 Ct. Cl. 307; Dorsheimer v. U. S., 7 Wall. 166, 19 L. ed. 187; but a statute which provides that the finding of the comptroller shall be final and conclusive as to the executive
department, does not render such finding conclusive on the courts.
U. S. y. Gilmore, 189 Fed. 761. See supra, $ 96. The Court of Claims has no power to make a rule requiring parties to present their claims to an executive department before suit. Such a rule is void. Clyde v. U. S., 13 Wall. 38, 20 L. ed. 479. Where an officer is directed by statute to examine claims, to report to Congress and to await further legislative action, no suit can be maintained on his report. Huffman v. U. S., 17 Ct. Cl. 55.
9 Supra, SS 96-96h.
10 Moore v. U. S., 4 Ct. Cl. 139. It has been held that suits may be successfully maintained by a naval officer for his expenses when traveling under orders, U. S. v. McDonald, 128 U. S. 471, 32 L. ed. 506; by a public officer such as the register of a land office on an implied contract for reasonable expenses necessary for the performance of his public duties, including rent and payments for janitor's services and fuel, except where a law limits or prohibits the same, Luse v. U. S., 35 Ct. Cl. 164. For a case where letter carriers were allowed to recover upon an implied contract for working more than eight hours a day, see San Francisco Mail Carriers' Case, 33 Ct. Cl. 417.
The Court of Claims has also jurisdiction over “Third. The claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility, on account of capture or otherwise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible." 12
"When any claim or matter is pending in any of the Executive departments which involves controverted questions of fact or law, the head of such Department may transmit the same, with the vouchers, papers, documents and proofs pertaining thereto,
11 Jud. Code, $ 153, 36 St. at L. 1087, re-enacting U. S. R. S., $ 1066. See, however, the act to provide for the adjudication and payment of claims arising from Indian depredations, 26 St. at L. 851, ch. 538. The Cherokee acts; 32 St. at L. 726, 996; 40 Stat. L. 1316; U. S. v. Cherokee Nation, 202 U. S. 101, 50 L. ed. 949; U. S. R. S., $ 1067. The Omaha Act, 36 St. at L. 580, U. S. v. Omaha Tribe of Indians, 253 U. S. 275. Claims based on treaty stipulations, include those which arise solely as the result of cession of territory to the United States; but the Court of Claims has jurisdiction over claims based on contracts originally made with the former sovereign of ceded territory and assumed by the United States after the cession either expressly or by implication. Eastern Extension, Australia and China Tele. Co. v. U. S., 31 U. S. 326.
12 Jud. Code, $ 145, 36 St. at L. 1087, re-enacting U. S. R. S., $ 1059. “Whenever the Court of Claims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsistence, or other disbursing officer, in the cases herein
before provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting officers of the Treasury shall allow to such officer the amount so decreed, as a credit in the settlement of his accounts. Jud. Code, $ 147, 36 St. at L. 1087, re-enacting U. S. R. S., § 1062. The words “without fault or negligence on the part of such officer,' mean such care and diligence as a prudent man would exercise in the discharge of a high public trust, or in a matter of private interest under similar circumstances. Malone v. U. S., 5 Ct. Cl. 486; Glenn v. U. S., 4 Ct. Cl. 501; Howell v. U. S., 7 Ct. Cl. 512; Hall v. U. S., 9 Ct. Cl. 270; Holman v. U. 8., 11 Ct. Cl. 642; Clark v. U. S., 11 Ct. Cl. 698; Curtis v. Banker, 136 Mass. 355; Christian v. U. S., 7 Ct. Cl. 431; Whittelsey v. U. S., 5 Ct. Cl. 452; Prime v. U. S., 3 Ct. Cl. 209; Murphy v. U. S., 3 Ct. Cl. 212; Hobbs v. U. S., 17 Ct. Cl. 189; Scott v. U. S., 18 Ct. Cl. 1; Hoyle v. U. S., 21 Ct. Cl. 300.