
    ROBERT W. DUNBAR v. THE UNITED STATES.
    [No. 150, Congressional.
    Decided March 14, 1887.]
    
      On the defendants’ Motion.
    
    The claimant brings a suit under the general jurisdiction of the court; it is dismissed for nonpros. He brings a second suit on the same claim under the Bowman Act; it is dismissed for want of jurisdiction. He now prosecutes a third, also under the Bowman Act. This petition alleges a lease of real property to the claimant by authority of the Secretary of War; the erection of buildings on the faith thereof; the dispossession of the claimant by officers of the Government before the expiration of the term, and the consequent loss of his leasehold estate, his buildings, improvements, &c.
    
      1.The fact that a claimant alleged in former suits, dismissed for non pros. and want of jurisdiction, that a contract existing between himself and the Government was valid, will not preclude him in a third suit from alleging that it was invalid and ultra vires.
    
    II.If a cause of action could not have been asserted in this court, the statute of limitations (Eev. Stat., § 1069), did not attach thereto ; and the claim is not barred thereby so as to preclude jurisdiction under the Bowman Act.
    III.A lease ot real property made by authority of the Secretary of War for a term of ten years is not ultra vires, and if the lessee be dispossessed before the expiration, of the term, and contrary to the intent of the agreement, an action for unliquidated damages will come within the general jurisdiction of this court (Eev. Stat., 1059). Therefore the statute of limitations attaches to such a claim, and excludes jurisdiction under the Bowman Act.
    
      The Reporters’ statement of the case:
    The grounds of the motion are stated in the opinion of the court.
    
      Mr. R. M. Watson (with whom was Mr. Assistant Attorney-General Howard) for the motion:
    1. The Committee of the Senate on Claims concluded that the agreement was valid, and so reported on March 2,1866.
    Two Committees of the Senate on Military Affairs reached the same conclusion, and so reported at subsequent dates.
    The claimant asserted it by bringing his suit in 1871 in this court for damages, on account of the very breach now complained of. The Government admitted it by pleading to the merits. The court adjudicated it by dismissing claimant’s petition because more than six years had elapsed between date of breach and commencement of suit.
    2. This very case has been heretofore transmitted to this court by a committee of the House under the Bowman Act, and was dismissed for want of jurisdiction. (Dunbar v. United States, 19 C. Cls. R., 489, 674.)
    Can the adjudication of this court that it had jurisdiction under section 1059, and its subsequent adjudication that it did not have jurisdiction under the Bowman Act, be overturned by the allegation in the petition of a legal conclusion % The facts of the case as presented now are identical with the facts as heretofore presented, and we insist that the previous judgments in the case estop claimant from prosecuting this claim now. (Chotean v. United States, 20 O. Cls. R., 250.)
    
      3. But if it be true that the contract or agreement for a breach of which damages are now claimed is invalid and not binding upon the defendants, because not executed by competent authority, what right has claimant here ?
    The Bowman Act does not confer jurisdiction upon this court to hear and determine claims for damages where no obligation is cast upon the Government, either by statute or public law, to pay such damages if proven. (Heflebower v. United States, 21 O. 01s. B., 228-237; Chotean v. United States, 20 id., 250.)
    In order to escape the bar raised by law against the prosecution of his claim, claimant gravely insists that he has not, and never had, a claim recognized by any law.
    
      Mr. William B. King (with whom were Mr. John Mullan and Mr. Charles King) opposed:
    1. Claimant is not barred in his present action by the former judgment of this court (19 C. Cls. B., 493) because a different claim has been referred to the court notwithstanding it arises from the same transaction.
    2. The claim transmitted and alleged in the petition is one of which this court could not have had jurisdiction under section 1059, Bevised Statutes, because the stipulations of the Secretary of War were beyond his authority and did not constitute a valid contract on the part of the United States. These stipulations were: (a) That claimant should hold an office for a term of ten years. (5) That he should remain in possession of certain Government property for ten years, this in effect constituting a lease.
    The power of removal from office by a future Secretary cannot be controlled by his predecessor. The disposition of the public lands is a matter exclusively for Congress.
    3. If the claim was not cognizable by the Court of Claims under section 1059, Bevised Statutes, it was not barred by section 1069, and consequently the jurisdiction is not affected by section 3 of the Bowman Act.
   Weldon, <7.,

delivered the opinion of the court:

In this case the defendants make a motion to dismiss for want of jurisdiction.

The ground relied on to sustain the motion is, that this court had jurisdiction of the claim under Eevised Statutes, section 1059, in that clause which provides that the court shall have jurisdiction “ upon any contract, express or implied, with the Government of the United States.” If the contention of the defendants be true the objection is well taken, and the motion should be sustained.

The subject-matter of this claim has been before this court in two proceedings, first in the year 1871, when the case was dismissed for want of prosecution; and again in 1884, and is reported in 19 C. Cls. R., 674. In both proceedings the claimant alleged as a cause of action a contract with the United States, and a violation of the same. In the latter case the petition was filed under the Bowman Act; a reference having been made in that proceeding by the Committee of War Claims of the House of Eepresentatives.

The fact that the claimant has in two instances alleged that there was a contract between him and the United States embracing in substance the same facts alleged in this case, will not prevent the maintenance of this petition, provided, upon legal principles, the facts alleged do not in law constitute an agreement or contract. If parties mistake the legal effect of an instrument or state of facts, while it might, by the strict rules of law applicable to the subject of pleading, involve serious consequence in that particular case, it would not in a subsequent proceeding enlarge or diminish the jurisdiction of the court in which the party may seek a new remedy.

The jurisdiction of a court in its subject-matter is fixed and determined by law and not by the consent or act of parties. The jurisdiction of the person of the litigant is often determined by consent or acts of the parties; but the jurisdiction as to subject-matter has an origin in a- source higher than the will of parties to a controversy.

It is conceded that the petition in this case is “ based upon the same transaction that the petition in the case in 19th Court of Claims was predicated, but it is insisted it is a different claim in law, because it is alleged in this petition that the officers of the defendants had no right to make a contract, such as they attempted to make, and therefore there is no contract, and the claimant is now, as he always has been, without a legal right to recover.

If it be true that the claimant had no cause of action at any time which might have been asserted in this court, and his claim is not barred “ by virtue of the provisions of any law of the United States,” then he has a right to maintain this petition under the present reference, although he has asserted a contract by the pleadings in both of his former cases.

It is now said, this is a claim for losses resulting from a failure on the part of the Government to carry out stipulations made by the Government officers which were beyond their authority. The transaction is now called a “stipulation” and not a contract. As was said by the court in Symonds’s Case (21 C. Cls. R., 118), “the legal essence of things cannot be changed by a mere name,” and if the stipulation referred to in the petition has the qualities of a contract, and it was made by persons competent to contract, then the jurisdiction is barred under the third section of the Bowman Act.

While the form of the petition in the present case is different in the structure of its allegations from the case when before this court at former terms, no new element of fact is introduced to distinguish this proceeding from the proceeding-based on the petition when before the court as an original case, and upon reference under the Bowman Act, as reported in the 19th C. Cls. R.

It is said in the opinion in the 19th, “ It needs only a single reading of the bill and petition to see that the demand is one for unliquidated damages for breach of contract. In Power’s Case (11 C. Cls. R., 263) and in McClure’s Case (ante, 18) we held that this is a description of a claim which no Executive Department has or ever had jurisdiction to examine and settle.” (Dunbar v. The United States, 19 C. Cls. R., 493.)

It is very clear from the allegations of the petition, that the officers of che United States made a contract with the petitioner and violated the same, provided they had jurisdiction of the subject-matter of the contract as property, and power in law to deal with it, as they did by the terms of the agreement.

The memorandum, stipulation, contract, or agreement was executed by Thomas Swords, deputy quartermaster-general, by virtue of authority vested in him by the Secretary of War, was made in pursuance of express orders from the Department, and unless the court is satisfied that the exercise of the power upon the part of the officers in leasing the premises was without authority, we must hold that the undertaking was binding upon both parties, and for a violation of it both parties would be liable. We have considered the question aside from the authority of this court, and can find no reason for changing the rule heretofore announced in the case reported in the 19th O. Cls. R. It is the judgment of the court that the motion to dismiss for want of jurisdiction be sustained.

Nott, J.,

dissenting:

The petition in the former action (19 C. Cls. R., 489) did not contain the allegation, which is the vital element of the present case:

‘!And your petitioner avers that his claim appeals not to strict grounds of law, but to the equitable discretion and good conscience of Congress, because he believed that the stipulations contained in the instrument before mentioned were strictly within the power of the Secretary of War, and he relied upon the representations made to him by the highest executive officer of the Government in the War Department, and in good faith expended large sums of money. Wherefore he believes that the United States cannot in good conscience refuse to compensate him.
“ Wherefore your petitioner again is compelled to appeal to the good conscience of the United States, and submits that as he relied upon the assurance contained in the instrument before mentioned, which was executed by authority of the highest executive officer in the War Department, he should be recompensed by the United States for his said losses and damages.”

Therefore the decision in the former case does not constitute a bar to this.

The defense indeed presents this dilemma: If the lease executed by the Secretary of War was ultra vires, it was not the act of the United States, and there was no contract, claim, or demand to which the statute of limitations could attach; if, on the other hand, the lease was the act of the United States, it created a leasehold estate belonging to the claimant, from which he was illegally evicted and the present cause of action is not for breach of contract, but for wrongful eviction — a cause of action whereof the court had not jurisdiction. Moreover it had not jurisdiction for the reason that the ouster of the claimant by the officers of the Government was under a claim of right, and the Supreme Court has decided that in such a case no contract can be implied, and consequently no action can be maintained. (Langford’s Case, 101 U. S. R., 341.)

The present suit must be regarded as standing upon the proposition that if the Government allowed a citizen to erect buildings and make roads upon its property on the faith of a contract made by the highest executive authority, and then, contrary to the terms of the supposed agreement, evicted him and appropriated his improvements to its own uses and purposes, it, in equity and good conscience, ought to recognize the agreement so far as to compensate him, not necessarily for his losses, but, assuredly, for the advantages which it acquired through the act, authorized or unauthorized, of its chief executive agent.

The law of real property, rigorous and often inequitable in its application, would not enable a party thus circumstanced to seek relief even in equity, nor would an implied contract be held to arise for the value of improvements put upon the land, however unequitable the conditions under which they were lost by the one party and acquired by the other. But if the Government were to obtain possession of personal property by a similar proceeding of its agent, the law would require it to restore the goods or pay their reasonable value, and an action might be maintained under the general jurisdiction of this court. (Salomon’s Case, 19 Wall. R., 17, reversing the decision of the Court of Claims in 7 C. Cls. R., 482.) The law of real property casts no such liability upon the owner of land, but equity and good conscience do.

The claimant is mistaken in setting up the profits of his private business as the measure of his damages. In no view of the case can the Government be made liable for damages remote and consequential. Wbat the claimant is entitled to show in this proceed ng is (3) the rental value of the quasi leasehold of which he was deprived, or (2) the value of the improvements which the Government acquired by its re-entry on the land. If Congress, as the principal in this transaction, should choose to ratify the unauthorized lease of their agent, the Secretary of War, the rental value of the property will be the measure of redress, the improvements passing to the United States by the terms of agreement. If Congress do not see fit to ratify the agreement, then the claimant cannot be compensated for the leasehold which he lost, but should be for the advantages which the Government acquired. That is to say, if the lease be not ratified the value of the improvements which he put upon the land on the faith of it will constitute the relief to which he will be entitled.  