1. The limitation prescribed by the Act of March 3, 1863, 12
Stat. 765, amendatory of an act establishing the Court of Claims,
does not bar in that court claims referred to it for determination
by the head of an executive department, provided they were
presented for settlement at the proper department within six years
after they had first accrued.
2. Pursuant to orders, the colonel of a regiment reported, July
25,1863, to the headquarters of a department, there to "await
further orders." While awaiting them, he was not furnished fuel or
quarters.
Held that he is entitled to recover their
commuted value.
This was a claim of Lippitt for $1,742 to which he alleged that
he was entitled as commutation for fuel and quarters while he was
in the military service of the United States. It was referred to
the court below by the Department of War.
He thereupon filed his petition. The United States traversed all
its averments, and also pleaded that the claim was not filed in or
transmitted to the Court of Claims within six years after it had
accrued.
The court below found the following facts:
1. The claimant was colonel of the Second California Volunteers,
a regiment in the military service of the United States, from some
day preceding the 2d of July, 1863, to some day subsequent to the
1st of August, 1864.
2. On the 2d of July, 1863, the claimant, then being in command
of the district of Humboldt, California, where his regiment was
stationed, was ordered by the commanding general of the Department
of the Pacific to report in person at the headquarters of the
department, there to await further orders. The headquarters of the
department were at San Francisco during the war. The order referred
to is that annexed to and forming part of the petition.
3. In compliance with these orders, the claimant about the 25th
of July, 1863, left his regiment, and from about that day to the
1st of August, 1864, was in San Francisco, absent from his
regiment, awaiting orders.
4. There is no evidence that during the said period, the
claimant received quarters and fuel in kind. There is no
evidence
Page 100 U. S. 664
that they could have been furnished in kind. The records of the
War Department show that most if not all the officers stationed in
San Francisco received commutation of quarters and fuel.
5. The commuted value of quarters and fuel in San Francisco,
during the said period, for a colonel of infantry, was $1,742.
6. On the 19th of July, 1864, the following order was issued, in
pursuance of which the claimant returned to his regiment:
"HEADQUARTERS DEPARTMENT OF THE PACIFIC"
"SAN FRANCISCO, CAL., July 19, 1864"
"I, Colonel Francis J. Lippitt, Second Infantry California
Volunteers, will repair to Fort Miller and assume command of his
regiment; headquarters at Fort Miller."
"The Quartermaster's Department will furnish the necessary
transportation."
"
* * * *"
"By command of Major-General McDowell."
"RICHARD C. DUNN"
"
Assistant Adjutant-General"
7. It does not appear that the claimant was ordered to or
performed any military duty during the time he was awaiting orders;
nor that he reported himself at headquarters, San Francisco, after
his first report on his arrival there.
8. It does not appear that claimant made any demand on the
proper officer at San Francisco that quarters and fuel be furnished
him.
9. It does not appear that claimant received any military order
after being placed on "awaiting orders," until the order of July
19, 1864, to repair to his regiment.
10. The claimant, in 1865, presented his claim to the proper
department, and pressed its settlement from that day to the 9th of
January, 1878, when it was referred by the War Department to this
court, by virtue of the following order:
"
To the Honorable the Judges of the Court of
Claims:"
"The undersigned, Secretary for the Department of War of the
United States, hereby respectfully represents that a claim has been
made against said department by Francis J. Lippitt, late
colonel
Page 100 U. S. 665
Second California Infantry, brevet brigadier-general United
States Volunteers, for commutation of fuel and quarters while
awaiting further orders at San Francisco, in 1863-64."
"Said claim involving controverted questions of law, and the
decision affecting a class of cases, the undersigned hereby, and in
accordance with the provisions of sec. 1063 Revised Statutes of the
United States, causes said claim, with all the papers pertaining
thereto, to be transmitted to the Court of Claims for trial and
adjudication."
"GEO. W. McCRARY"
"
Secretary of War"
"WAR DEPARTMENT, Jan. 9, 1878"
Filed in the Court of Claims Jan. 10, 1878.
The Court of Claims held that the action was not barred by the
statute of limitations, and rendered judgment on the merits for the
claimant.
The United States then appealed to this court.
The Attorney-General for the United States.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The correctness of the judgment below depends in part upon the
construction of the tenth section of the act of March 3, 1863,
amendatory of the Act of Feb. 24, 1855, establishing the Court of
Claims. That section declares
"that every claim against the United States, cognizable by the
Court of Claims, shall be for ever 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 [that] act, within
six years after the claim first accrues,"
&c.
The claims against the government, of which the Court of Claims
could, at that date, take cognizance, were those founded upon some
law of Congress, or upon some regulation of an executive
department, or upon some contract, express or implied, with the
government of the United States, which might be suggested to that
court by a petition filed therein; and also, all claims which might
be referred to the court by either House of Congress. The
limitation of six years applied, therefore, to every demand
asserted against the government in the Court of
Page 100 U. S. 666
Claims, which it had, when the act of 1863 was passed,
jurisdiction to hear and determine. Within the meaning of the act
all such claims were cognizable by that court.
By a subsequent statute, approved June 25, 1868, authority was
given to the head of any executive department, whenever any claim
was made upon that department involving disputed facts or
controverted questions of law, where the amount in controversy
exceeded $3,000, or where the decision would affect a class of
cases, or furnish a precedent for the future action of any
executive department in the adjustment of a class of cases, without
regard to the amount involved in the particular case, or where any
authority, right, privilege, or exemption was claimed or denied
under the Constitution of the United States, to cause such claim,
with all documents pertaining thereto, to be transmitted to the
Court of Claims, to be there
proceeded in as if originally
commenced by the voluntary action of the claimant.
The court was also empowered to try and adjudicate any claim of
like character, amount, or class transmitted to it by the Secretary
of the Treasury, upon the certificate of an Auditor or Comptroller
of the Treasury.
But the act accompanied this enlargement of the jurisdiction of
the Court of Claims with the restriction that no case should be
referred to it by the head of a department, unless it belonged to
one of the several classes of cases to which, by reason of the
subject matter and character, the court could, under the then
existing laws, take jurisdiction on the voluntary action of the
claimant.
The claim of appellee first accrued in 1864. It was presented to
the War Department in the year 1865, and its settlement pressed --
so the finding declares -- until Jan. 9, 1878. On that day, it was
transmitted by the Secretary of War to the Court of Claims for its
determination. It was transmitted, not, so far as the record shows,
at the instance or with the consent of the appellant, but because
it involved controverted questions of law, the decision whereof
would affect a class of cases.
It is conceded by the government that the claim was presented at
the proper department, and, when presented, was not barred by the
limitation of six years. But the contention of
Page 100 U. S. 667
the Attorney-General is that the Court of Claims is prohibited
by the express words of the statute from giving judgment against
the government upon any claim which is not asserted by petition
filed therein within six years after the claim first accrued, or
which is not within that period transmitted to the court from one
of the Houses of Congress or by the head of an executive
department.
We are unable to concur in this construction of the statute of
March 3, 1863. Such a construction would work an injustice which we
cannot suppose Congress intended should be done to the citizen
having a demand against the government. The claim in question,
although cognizable in the first instance by the Court of Claims,
was yet properly presented at the department which had authority to
pass finally upon it. It should have been there allowed or
disallowed long before the expiration of six years from the time it
first accrued. The claimant steadily pressed its settlement
without, so far as the finding shows, any intimation that it was
defectively prepared, or that it would be ultimately rejected. The
department held it undisposed of until 1878, and then sent the
claimant to the Court of Claims, where he was met at the very
threshold of his case by a plea of limitation upon the part of the
government. That plea, if sustained, would defeat the only object
of the reference. It would prevent the department from obtaining
for its future guidance the judgment of the court upon controverted
questions of law affecting a large class of cases. It should not be
sustained, unless we are required to do so by some absolute,
unbending rule of construction.
When this claim was presented at the War Department for
settlement, there was no statute allowing the heads of executive
departments to refer claims to the Court of Claims for
adjudication. But when the Act of June 25, 1868, was passed, its
provisions necessarily applied to all claims then before the
executive departments which belonged to one of the several classes,
of which, by reason of their subject matter and character, the
Court of Claims could take cognizance upon the voluntary petition
of the claimant. The claim of appellee certainly belonged to one of
those classes. It was not, as we have seen, barred by limitation,
when that act was passed. It could, then,
Page 100 U. S. 668
in 1868, have been referred by the War Department to the Court
of Claims for its determination. But, instead of adopting that
course, at a time when no question of limitation could be raised,
its reference was postponed or delayed for nearly ten years after
the passage of the act of 1868. We are satisfied that the delay was
accidental, certainly not with any intention to defraud or injure
the claimant. If the plea had, upon its face, admitted, or if the
fact was established by competent evidence, that the delay in
deciding or in referring the claim to the Court of Claims was
intentional or with a purpose to defeat the claimant by limitation,
the court would certainly not permit the government to profit by
such a course. Why should a different conclusion be reached when
the delay is unexplained and is inconsistent with proper diligence
in the transaction of the public business? It seems to the Court
that, looking at the purpose which Congress had in the
establishment of the Court of Claims, and in enlarging its powers,
as indicated in the acts of 1863 and 1868, the just and reasonable
construction of the tenth section of the first-named act requires
us to hold that limitation is not pleadable in the Court of Claims
against a claim cognizable therein, and which has been referred by
the head of an executive department for its judicial determination,
provided such claim was presented for settlement at the proper
department within six years after it first accrued -- that is,
within six years after suit could be commenced thereon against the
government. Where the claim is of such a character that it may be
allowed and settled by an executive department, or may, in the
discretion of the head of such department, be referred to the Court
of Claims for final determination, the filing of the petition
should relate back to the date when it was first presented at the
department for allowance and settlement. In such cases, the
statement of the facts upon which the claim rests, in the form of a
petition, is only another mode of asserting the same demand which
had previously, and in due time, been presented at the proper
department for settlement. These views find support in the fact
that the act of 1868 describes claims presented at an executive
department for settlement, and which belong to the classes
specified in its seventh section, as cases which may be
transmitted
Page 100 U. S. 669
to the Court of Claims.
"And all the
cases mentioned in this section which
shall be transmitted by the head of an executive department or upon
the certificate of any auditor or comptroller shall be
proceeded in as other cases pending in said court and
shall in all respects, be subject to the same rules and
regulations,"
with right of appeal. The cases thus transmitted for judicial
determination are, in the sense of the act, commenced against the
government when the claim is originally presented at the department
for examination and settlement. Upon their transfer to the Court of
Claims, they are to be "proceeded in as other cases pending in said
court."
Whether if a claim be presented at the proper department when
six years has elapsed after it first accrued, the government is at
liberty, upon its transfer therefrom to the Court of Claims, to
plead the limitation of six years, or whether the court, in such
cases, must itself interpose the statute for the protection of the
government, are questions not necessary to be decided in this
case.
Touching the merits of the case, it appears that the appellee
was required, by competent military authority, to leave his
regiment, then on duty in the district of Humboldt, California, to
the command of which he had been previously assigned, and report in
person at the headquarters of the department of the Pacific, in San
Francisco,
there to await further orders. He remained in
that city, absent from his regiment, from about July 25, 1863,
until Aug. 1, 1864, awaiting orders. It is immaterial that he
performed no active duty while thus awaiting orders. He was subject
to assignment for such duty, while in San Francisco, and, as said
by the court below, the responsibility for his nonemployment rested
with his superior officer. What was said in
United
States v. Williamson, 23 Wall. 411, has some
application here. That case arose under the act of March 3, 1863,
relating to the government of the army, by which it was enacted
that any officer absent from duty with leave, except for sickness
or wounds, shall, during his absence, receive half the pay and
allowances prescribed by law, and no more. Williamson claimed full
pay while absent, upon his own request, from his command. He was,
however, required to remain at a particular place and to await
orders. Among
Page 100 U. S. 670
other things we there said:
"The obligations of an officer directed to proceed to a place
specified, there to await orders, are quite different. It is his
duty to go to that place, and to remain at that place. He cannot go
elsewhere; he cannot return until ordered. He is as much under
orders, and can no more question the duty of obedience, than if
ordered to an ambush to lie in wait for the enemy, to march to the
front by a particular direction, or to the rear by a specified
time."
Nor is there any thing in
United States v. Phisterer,
94 U. S. 219, in
conflict with the conclusion we have reached. We there held that an
army officer at his own home awaiting orders, and having no public
duty to perform, was not entitled to commutation for quarters or
fuel. No such case is presented by the special finding.
Some stress is laid upon the fact that appellee has failed to
show affirmatively that he made a demand on the proper officer at
San Francisco for quarters and fuel in kind. There is some force in
this suggestion, but, under the circumstances of this case, we do
not think it should control our judgment. There is no evidence that
quarters and fuel could have been furnished in kind. On the
contrary, the records of the War Department show that most, if not
all, the officers stationed in San Francisco during this period
received commutation of quarters and fuel. In the light of all the
facts found by the court below, and since it does not appear that
the claim was objected to in the War Department upon any such
ground, during the thirteen years it lay there, undisposed of,
despite the fact that its settlement was steadily pressed by the
claimant, we are disinclined to reverse the judgment because it
does not appear affirmatively that appellee, upon his arrival in
San Francisco, made a formal requisition for quarters and fuel.
Our conclusion is that, under the law as it stood when
appellee's claim accrued, he was entitled to the commuted value of
quarters and fuel while in San Francisco awaiting orders.
Judgment affirmed.
