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CLAIM.1

761. Under the law and practice governing the Executive Departments, a head of a department is held not to be in general empowered, without specific statutory authority for the purpose, to reopen (except for the correction of an error in calculation) a claim once duly settled by his predecessor, in the absence of new and material evidence clearly entitling the claimant to an additional allowance. So held, that, in the absence both of new evidence and new statutory authority, the Secretary of War would not be empowered to reopen and reconsider a claim for the repayment of a certain sum (paid as commutation money by a party who claimed to have been illegally drafted), the question of the allowance of which had been duly considered by a former Secretary (under a statute authorizing him to repay the same if deemed to be justly due), and had been unfavorably determined, ten years before. And this, though the correctness of such determination was considered to be doubtful; the proper recourse of the claimant in such case being to Congress. XLII, 357, July, 1879.

762. As a general rule, a claim decided adversely by a former, can not be reopened by a later, Secretary, in the absence of new evidence going to the merits. 42, 413, August, 1890; Cards 687, December, 1894; 1408,

The reason of the restricted authority (illustrated under this Title) of the Executive department in the allowance of claims may be found in the principle of public law, as expressed by Miller, J., in the case of The Floyd Acceptances, 7 Wall., 666, 676,-that "in our structure of government all power is delegated and defined by law: * * we have no officers, from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority.”

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U. S. r. Bk. of Metropolis, 15 Peters, 377; Rollins and Presbrey r. U. S., 23 Ct. Cls., 106, and cases cited; Waddell's Case, 25 id., 323; 9 Opins. At. Gen., 32; 12 d., 355; 14 id., 275; 15 id., 192; 16 id., 452; 1 Comp. Dec. 193; 2 id., 264, 401; 4 id., 303; 6 id., 236, 245. In Rollins and Presbrey, e. U. S., supra, it was held, quoting from syllabus, that "any public officer in an Executive Department may correct his own errors and open, reconsider, or reverse any case decided by himself." In delivering the opinion of the court, Chief Justice Richardson said: "It has long been held in the Executive Departments that when a claim or controversy between the United States and individuals therein pending has once been fully considered, and final action and determination had thereon by any executive officer having jurisdiction of the same, it can not be reopened, set aside, and a different result ordered by any successor of such officer, except for fraud, manifest error on the face of the proceedings, such as a mathematical miscalculation or newly discovered evidence, presented within a reasonable time and under such circumstances as would be sufficient cause for granting a new trial in a court of law. This ruling and practice of the Departments has been approved elsewhere and has been sustained by the courts. (9 Opin. At. Gen., 34; 12 id., 172, 358; 14 id., 275, 387, 456; 15 Pet., 401; Lavalette's Case, 1 Ct. Cls., 147; Jackson's Case, 19 id. 504; State of Illinois Case, 20 id., 342; McKee's Case, 12 id., 560; Day's Case, 21 id., 264, and the opinion of the Judiciary Committee of the Senate, reported by Senator and Judge David Davis, quoted in Jackson's Case above referred to.) But it has never been doubted that any public officer in the Departments may correct his own errors, and open, reconsider, and reverse in whole or in part any case decided by himself."

June, 1895. It is only for fraud, manifest error on the face of the proceedings (an erroneous calculation for example), or newly discovered evidence presented within a reasonable time and sufficient to warrant a new trial at law, that a claim or controversy, finally passed upon by a head of a department, may, in the absence of specific authority from Congress, be reopened by a successor. 34, 225, 357, August, 1889; 39, 23, February, 1890; 47, 223, May, 1891; 53, 443, May, 1892; 54, 162, August, 1892; 58, 109, February, 1893. But any public officer may correct his own errors and reopen his own decisions. 34, 225, August, 1889.

763. A final settlement of a claim under special statutory authority, followed by receipt and acceptance by the claimant of the amount awarded, estops the claimant from questioning that such allowance and payment constituted a full and final satisfaction of his entire claim.* So where the Secretary of War, pursuant to act of Congress, had settled the claim of a railroad co. for military transportation by the allowance of a sum which was paid and accepted as a final award, held that without new authority from Congress, he could not reopen the case for the purpose of allowing further credits, except to correct errors in calculation. XLII, 332, June, 1879.

764. Where a claim has once been settled by a preceding Secretary under the provisions of a statute imposing such duty upon him, and subsequently a resolution is adopted by one house of Congress, or a committee thereof makes a report, adverse to the decision of the Secretary, such resolution or report may properly serve as a ground for reopening and again examining and settling the case; and while the views of the committee, or those indicated in the resolution, as to the meaning of the statute are entitled to respectful examination and consideration by the Secretary, they are not binding upon him in the reexamination and settlement of the claim. He must look solely to the statute which gave him jurisdiction and act according to his own best judgment of its meaning. 56, 6, October, 1892.

765. An executive official cannot, of his own authority, appropriate the money of the United States for the purpose of satisfying a claim. So held that the Secretary of War could have no authority to reimburse a claimant for the amount of a tax assessed upon him by the military authorities during the war, and expended in the public service, whether

1 See note to § 761, ante.

25 Opins. At. Gen., 122; 10 id., 259; 12 id., 386; 4 Comp. Dec., 328; 6 id., 858. "Where a claimant has heretofore presented and has been allowed a claim for a part of an entire demand arising out of the same service and in the same right, such partial allowance is a settlement of the whole demand and a subsequent application for the remainder will be disallowed." 4 Comp. Dec., 328.

$19 Opins. At. Gen., 388.

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

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,

1A 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. 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 . 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 . 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, 296; 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.

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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 government. Claimants 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 v. 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.' 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

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

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