or not the same was legally exacted, but that Congress must be applied to for the necessary action.1 XVIII, 668, March, 1866.

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766. The Government will in general recognize assignments of claims to moneys in its hands due and payable to individuals, so far as to consent to pay over the amount to the assignee, where the assignment is made according to law, viz., Sec. 3477, Rev. Sts. But parties representing opposing interests cannot, by presenting to a head of a department conflicting claims to such money, compel him to become a stakeholder for them or an arbitrator upon the merits of their demands. Where there is any doubt as to whom the money should be paid, the claimants should properly have recourse to Congress or the courts. XIX, 266, December, 1865.

767. Where a claim for pay for military service, not yet allowed, had been won from the owner in a bet on a horse race, and a power of attorney to collect the same had been executed by the owner to the claimant, held that such power was, in effect, an assignment of the claim, and as such was-whether fraudulent or not-"absolutely void," under Sec. 3477, Rev. Sts. LII, 95, March, 1887.

768. Notwithstanding the equitable principle that interest is an incident of a debt, the rule is well settled that, except where its payment is expressly stipulated for by contract, or specifically authorized by act of Congress, the United States is not bound, nor is any executive official empowered, to pay interest on claims, whether arising out of contract or otherwise. XXI, 564, July, 1866; XXXII, 606, May,

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A claim, though deemed by the Secretary of War to be probably just, cannot in general, in the absence of any appropriation for its payment, or other authority to allow the same, properly be entertained by him. And where to pass upon a claim must be clearly quite futile, a consideration of its merits will in general be out of place, and the claimant, without being heard thereon, will properly be referred to the department of the government empowered by law to take specific action in his case. 2 Assignments of claims not made as prescribed in this section are declared to be "absolutely null and void"; but this statute was intended to protect the Government and not the claimant and to prevent frauds upon the Treasury and the payment will be good as to him. Price v. Forest 173, U. S., 410, 423, and authorities cited. While the accounting officers will not approve powers of attorney not executed in accordance with the statute, if disbursing officers in fact make payments to persons holding unrevoked and undisputed powers of attorney, the accounting officers are compelled, under the decisions of the Supreme Court, to allow the disbursing officers credit for such payments in the settlement of their accounts. 1 Com. Dec., 142. See also, 2 id., 295; 4 id., 196; 6 id., 101; 16 Opins At. Gen., 261. This section, however, does not prohibit the passing of claims to heirs, devisees, assignees in bankruptcy, or even voluntary assignment for the benefit of creditors, because the passing or transfer of claims in such cases does not come within the evil at which the statute is aimed. Erwin v. U. S., 97 U. S., 392; Goodman v. Niblack, 102 id., 556; 2 Comp. Dec., 50; 6 id., 103. See also, 20 Opins. At. Gen., 578.

Angarica . Bayard, 127 U. S., 251, 260; Harvey v. U. S., 113 id., 243; Tillson v. U. S., 100 id., 43; Todd v. United States, Devereaux (Ct. Cls.), 95; United States v. McKee, 1 Otto, 450; 1 Opins. At. Gen., 550, 554; 2 id., 463; 3 id., 635; 4 id., 14, 136, 286; 5 id., 72, 105, 138, 334, 356; 6 id., 533; 7 id., 523; 9 id., 57, 449; 14 id., 30; 17 id., 351.

In the absence of statutory authority, a military officer, in entering into a contract as the representative of the United States, should not stipulate with the contractor that, in case payments due him under the contract are delayed beyond a certain time, he will be entitled to claim interest thereon.

1872; 52, 427, March, 1892; 54, 464, August, 1892. So held that a State or Territory was not entitled to be allowed interest on the amounts found to have been expended by it in raising, arming, supporting, &c., volunteers, under the act of June 27, 1882; that act not making provision for any allowance of interest.' LI, 200, December, 1886; 420, January, 1887; LIII, 238, March, 1887.

769. Neither the Secretary of War nor any executive official can, without authority from Congress, be empowered to pay, allow, or favorably entertain an unliquidated claim or claim for an unsettled, undefined amount. A claim for unliquidated damages, as such a claim is commonly designated, is a claim for an amount not fixed by an express contract or capable of being fixed by the terms of such a contract but based upon an alleged implied contract or an alleged wrong. 54, 386, July, 1892; 63, 180, 228, January, 1894; Cards 3627, November, 1897; 3969, September, 1898; 5573, January, 1899; 5901, March, 1899. Such claims, if within the description of the act of March 3, 1887, should be sued upon in the Court of Claims or U. S. district courts, which have been invested by that act with a concurrent jurisdiction of certain claims based upon implied contracts with the Government and "for damages liquidated or unliquidated." 20, 109, October, 1887.

770. The Secretary of War, in the absence of authority from Congress, is not empowered to allow a claim for unliquidated damages; the term "damages" being here used in its legal sense. In general, in the absence of a specific appropriation by Congress for the purpose, no executive or military officer can legally pay or allow to an individual a sum of money not expressly stipulated to be paid to him by the terms of a lawful contract. A claim for an amount not fixed by express contract, or capable of being fixed according to its terms, but based upon an alleged implied contract or an alleged wrong done the claimant, is a claim for unliquidated damages, and cannot legally be allowed, of its own authority, by an executive department of the govClaimants for unliquidated damages must have recourse to Congress or, in a limited class of cases, to the Court of Claims. XXXII, 433, March, 1872; XXXV, 111, January, 1874: XXXVII, 233, January, 1876; XXXIX, 417, February, 1878; LIII, 279, April,

1Compare 17 Opins. At. Gen., 595.

2 Dennis . U. S., 20 Ct. Cls., 119; Brannen v. U. S., id., 219; Pitman v. U.S., id., 253; 1 Comp. Dec., 261, 283; 2 id., 174, 488; 4 id., 446; 5 id., 693, 770; 6 id., 707. But payment may be made for work or materials furnished and received under a contract express or implied, though the price is not fixed by such contract. McClure v. U. S., 19 Ct. Cls., 179; Dennis v. U.S., 20 id., 119; Pitman v. U. S., id., 253; 1 Comp. Dec., 283; 2 id., 365; 3 id., 365, 565; 6 id., 648, 953; 7 id. (dated March 12, 1901). And where it is to the interest of the United States the Secretary of War may enter into a supplemental contract with a contractor, discontinuing an existing contract on payment to the contractor of a stipulated sum. U. S. . Corlis Engine Co., 91 U. S., 321; Satterlee v. U. S., 30 Ct. Cls., 31; 3 Comp. Dec., 54; 6 id., 953.

1887; 33, 46, June, 1889. Thus held that the Secretary of War was not empowered to allow a claim of a contractor for damages for the nonperformance of a contract on the part of the United States, no such damages being stipulated for in the contract.1 XXXII, 432, March, 1872. So held that the Secretary of War was not empowered, in the absence of statutory authority, to allow a claim for the use and occupation of buildings taken possession of and occupied by the military authorities without contract or agreement as to rent, or a claim for injury done to such buildings, but that the claimant must have recourse to Congress (or the Court of Claims) for his reasonable compensation. XXXVII, 534, May, 1876. Similarly held that the Secretary of War was not empowered to allow the claim of a citizen, who had been permitted to make certain improvements upon public land, to be indemnified on account of alleged injury to his property and business caused by the extending of the limits of a military reservation over the land occupied by him. XLII, 592, April, 1880. So held that the Secretary of War was not empowered (of his own authority and discretion) to allow a claim for indemnity for his alleged wrongful arrest and imprisonment as a deserter, made by a party who claimed to have been arrested by mistake for the real offender (XXI, 122, December, 1865; XXVI, 597, June, 1868); or a claim for his arrest and detention as a deserter made by a party claiming to have been illegally drafted (XIV, 405, April, 1865); or a claim for an alleged wrongful arrest and confinement made by a prisoner of state, or suspected person in time of war (XV, 129, April, 1865; XIX, 166, November, 1865; XXXVI, 522, June, 1875); or a claim for reimbursement by a military employee for loss of wages during a period of an arrest and trial by court martial, the conviction in his case having been held to be invalidated by reason of a defect in the proceedings (XIV, 225, February, 1865); or a claim for the value of personal property illegally appropriated by a soldier (XLII, 295, May, 1879); or a claim for the value of property taken or destroyed by the army during a war. XX, 603, May, 1866; XXXIII, 128, July, 1872.

771. And where the claims were for corn taken from a field and damage done to fences by U. S. soldiers encamped in the vicinity (Card 668, November, 1894); for damages to a crop by cavalry horses breaking into the field (Card 1553, July, 1895); for damage to a phaeton and harness caused by the runaway of a horse, caused by a stampede of U. S. cavalry horses (Card 2611, September, 1898); for damages done by U. S. troops to crops and fences in field maneuvres and to lands used for drilling purposes, there being in the latter cases no contract express or implied by which the Government agreed to pay

'See 4 Opins. At. Gen., 327; 6 id., 499, 516; 9 id., 81; 14 id., 24, 183.

for the damages (Cards 4315, June, 1898; 4658, 4686, July, 1898; 4771, 4772, August, 1898; 5029, October, 1898); held that as the claims were for unliquidated damages, neither the Secretary of War nor other executive official could without statutory authority pay or allow the

same.

772. Where a claim for damages on account of an alleged infringement by the United States of a patent was made, held that if the claim were substantiated by proof, it would be one for unliquidated damages, which the Secretary of War would not be empowered to pay without authority of Congress. Card 595, November, 1894, and January, 1898.

773. In the absence of legislative authority the Secretary of War cannot allow a claim for unliquidated damages directly nor can he allow it indirectly by entering into a supplemental contract to allow it. Thus where it was proposed by supplemental contract to compensate the contractor "for all losses arising from delays caused by the aforementioned modifications of plans and specifications and for all other claims of whatever nature arising under said original contract," held that this stipulation being for the payment of unliquidated damages the Secretary of War was without authority to bind the Government to the same.' Card 2275, May, 1896.

774. The declaration in the Vth Amendment to the Constitution, that private property shall not be taken for public use without just compensation, adds nothing to the authority of the Secretary of War to allow a claim for compensation for real or personal property taken for the use of the army or of his department. Congress alone (or in some cases the Court of Claims) can authorize the payment of the compensation here intended, and in the absence of authority from Congress, it would be quite beyond the province of an executive officer to assume to pass final judgment upon the merits of such a claim. XXXVII, 7, January, 1875.

775. Held that the provision of Sec. 3480, Rev. Sts., making it unlawful to pay certain claims against the United States to persons who promoted, &c., the late rebellion, created a personal disability only, which could not operate against the heirs of parties thus disqualified, unless they too participated in the rebellion. XXXIX, 417, February, 1878.

776. Without special authority for the purpose conferred by Congress, the executive branch of the Government cannot be empowered to pay any claims, in favor of the "loyal" owners, for property destroyed or captured by the enemy, or taken, destroyed, or damaged by the Federal troops, or appropriated for the use of the Federal army by the

1 But see note to § 769, ante.

military authorities; or for land or buildings occupied for military purposes; or for land or property occupied or used in making fortifications or otherwise in the common defence-during the civil war, and in the absence of authorized express contract. Claims, however, of this class, where the taking or use of the property for a public purpose has been justified by a necessity of the service incident to a public emergency (and the officer making the seizure, &c., is thus relieved from being treated as a trespasser and made personally amenable in damages'), yet may, in view of the constitutional provision for the rendering of just compensation for private property taken for public use, be sued and recovered upon in the Court of Claims, where within its statutory jurisdiction. In such cases the obligation thus created "raises an implied promise on the part of the United States to reimburse the owner." XX, 525, 598, April and May, 1866; XXII, 304, August, 1866; XXVI, 52, 242, September and December, 1867; XXXVI, 1, February, 1874.

777. As to the classes of claims for quartermaster's and subsistence stores authorized to be settled by the act of July 4, 1864 (as amended by subsequent acts, and now incorporated in Secs. 300 A and 300 B, Rev. Sts.), it was held as follows:

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(a.) That the term "All claims of loyal citizens in States not in rebellion" meant claims not only of "loyal" claimants but claims originating in States which were not in insurrection; and that if the claim did not so originate it was immaterial where the claimant resided or that the claim was meritorious. XVII, 599, February, 1866; XIX, 538, April, 1866; XX, 318, 355, January, 1865; XXI, 19, 132, 243, 248, November, 1865, to February, 1866; XXXIII, 125, July, 1872. On the other hand, a claim originating in a State "not in rebellion" was held within the act, although the State or locality where it originated may have been at the time occupied by the enemy or the theatre of war. XXV, 621, June, 1868. Held further that the fact that the claimant was a foreigner (XXVI, 252, December, 1867), or a

'See Mitchell v. Harmony, 13 Howard, 115; United States r. Russell, 13 Wallace, 623; Parham . The Justices, 9 Ga., 341; Griffin v. Wilcox, 21 Ind., 380; Clark v. Mitchell, 64 Mo., 567.

2 United States v. Russell, 13 Wallace, 630. In view of the great number of claims of "loyal" persons for compensation for property appropriated or destroyed during the civil war, Congress from time to time made special provision for the investigation and allowance of certain claims of this nature;-as by the act of July 4, 1864; the "Captured and Abandoned Property Act,” of March 12, 1863, authorizing the recovery of the proceeds of certain property seized and sold; and the act of March 3, 1871, 8. 2, establishing the "Southern Claims Commission."

As to the effect of the amendment by the act of Feb. 18, 1875, see 15 Opins. At. Gen., 35.

See the construction of the act of 1864 by Congress in the subsequent act of Feb. 21, 1867; also Circular No. 51, of the War Department of 1865, and 12 Opins. At. Gen., 362, 497.