
    SWEENEY’S CASE. Thomas C. Sweeney v. The United States.
    
      On the Proofs.
    
    
      The quartermaster at Louisville charters a steamer at $175 per day. The owner subsequently remonstrates, and has the compensation increased to $200 a day. After some months of service the steamer passes to another military department; she is there allowed and paid $140 a day. The owner remonstrates. After the steamer has left the service a' settlement is made, whereby the quartermaster pays $5 a day additional for a portion of the time, in accordance with a verbal agreement made between him and the owner’s agent. The amount thus paid is receipted for as in full of the above account. The original charter-party was for no fixed period, and the accounts and receipts at $140 a day do not refer to it, while the previous accounts at the charter rate do refer to it. 2Lo evidence is offered to show in what manner or by what authority the steamin' passed from the one military department to the other. The owner never presents his claim to any executive department for payment, and rests upon it until he brings his action in this court.
    
    I. Tlie Court of Claims lias jurisdiction of an action upon a claim sucli as is ordinarily settled in an executive department, notwithstanding that the claim has never "been presented to any department for payment. But the court will not allow such an action to proceed to judgment until the • demand has been submitted to the proper department for payment. Act February 24i7i, 1855, (10 Stat. L., p. 612, § 1.) Act March 3d, 1863, (12 ibid., p. 765, § 7, 10,) Bule II.
    II. Where a steamer in the military service under a charter-party, naming-no fixed period, passes into another military dex>artment, is piaid at a different rate of condensation, and the accounts and receipts between the parties do not refer in any way to the original charter-party, while the claimant neglects to explain in what manner and by what authority the steamer passed from the one department to the other, the presumption is that she is in service in the second department under a new or implied agreement.
    III. Where the owner of a steamer chartered by the Quartermaster Department, as he claims (though disputed at the time) under a written agreement specifying the rate of $200 a day, receives and receipts for the pay of the vessel at $140 a day, and, after the boat has loft the service, agrees orally with the qriarterinaster to accept $5 a day for a portion of the piast time in settlement of his controverted demand, and then rests several years without apipeal to the Quartermaster General, it will be deemed sufficient evidence of a compromise which a court should not disturb.
    
      Mr. G. F. Peck, for tbe claimant:
    This is an action brought by original petition to recover a balance of $9,955, being the balance clue from the United States on account of the charter of the steamer Ben Franklin.
    The contract, which is in writing, differs from those usually brought before a court in this, that it was not entered into voluntarily by the claimant, as to all of its terms. The quartermaster required the immediate use of the boat, and offered $175 per day; the owner demanded $200, and endeavored to evade the hiring of his vessel on any terms. In this he was unsuccessful, and to avoid the alternative of a seizure without any contract, he entered into such a written agreement with the quartermaster, John H. Ferry, as was presented to him; the material parts of which are, that the steamer was chartered to the United States from March 3, 1863, at 12 o’clock m., for an indefinite time; and the quartermaster, agreeing on the part of the United States that claimant should be paid at the rate of $175 per day for each and every day said steamer should be employed in the government service.
    Mr. Sweeney having given only a formal consent to the clause of the contract fixing the compensation at $175 per day, made application to Colonel Swords, the chief quartermaster of the department, for a modification of the contract in this particular; and it was agreed by Colonel Swords, on behalf of the United States, that $200 per day should be paid for the boat..
    The boat was reported by Captain Ferry as being in the public service for the months of March and April, 1863, at $200 per day, and payment was made at that rate to March 20,1863. The steamer was continued in the government service without any other or different contract until the 17th of September, 1863. During tlie time tbe boat was in tbe service no further payments were made.
    In tbe mouths of October and December, 1863, claimant was paid at tbe rate of $140 per day, and subsequently $5 per day was added to this, making in all tbe sum of $146 per day from March 20 to September 17.
    Tbe only points of law which are involved in tbe case have been decided by this court in tbe cases of Pratt v. The United States, 3 C. Ols. B., p. 105; Balter et al. v. The United States, ibid., p. 343; Caleb v. The United States, ibid., p. 351.
    
      Mr. Alexander Johnston (with whom was tbe Assistant Attorney General) for tbe defendants:
    On tbe 3d day of March, 1863, tbe claimant chartered bis steamboat Ben. Franklin to tbe government, through Captain John IT. Ferry, assistant quartermaster, at the rate of $175 per day. There is an attempt to show that the claimant was forced to make this charter; that his vessel would have been impressed if he had not done so. The testimony tending to show this is made up of conversations which occurred before the execution of the charter, and is clearly incompetent.
    The charter was for no definite time; but it would seem, from the letter of Thomas Sweeney to Colonel Swords, that it was for one trip to Nashville. The vessel, in fact, made but one trip to Nashville before leaving Louisville and going beyond the reach or jurisdiction of the quartermaster who had chartered her.
    When the final settlement was made, December 19, 1863, an extra allowance of five dollars per day was made upon all accounts theretofore paid; and payment was made at the rate of $145 per day for all services for which no settlement had previously been made. The receipt given upon this final settlement recites that this extra allowance “or settlement” was made on 163J days, and that the matter was “settled by request and in accordance with agreement made by Captain Charles Parsons, assistant quartermaster,” and the account is receipted in full.
    ' I. The correspondence between Thomas Sweeney, Colonel Swords, and Captain Jenkins could not modify or change a contract entered into by another officer.
    
      II. When the vessel left the jurisdiction of the quartermaster who made the charter, and her owner applied for and received payment from a quartermaster in another jurisdiction, the charter ended.
    III. The settlement made on the 19th of December, 1863, upon which a receipt in full was given, was a final settlement, by which the claimant is barred from making any further claim.
    IY. The claim having never been submitted to the executive department charged with the settlement of such claims, no action can be maintained upon it in this court. (Clyde's Case, decided at the present term of the court, ante, p. 134.)
   Nott, J.,

delivered the opinion of the court:

This is an action brought upon the charter-party of the steamer Ben Franklin to recover a balance due, amounting, it is said, to $9,955.

The Assistant Attorney G-eneral has made the same objection to the maintenance of this action which has been taken of late in a number of others, and it is that while the claim presented in the petition is such as is ordinarily settled in an executive department, “ the evidence in the'case does not show that any such application has ever been made to any department of the government., whether with or withdut success, nor any action whatever thereon, 'without which action this court has no lawful jurisdiction of the case.” It is conceded by the claimant that neither the specific demand nor the original contract has ever been before an executive department. The ease presents, therefore, the naked question whether a claimant has a right to bring his action in this court without presenting his claim to the proper accounting officers of the government for payment — whether he may bring his action here with the same freedom that an ordinary creditor can sue an ordinary debtor in a court of law upon a demand arising on contract.

There are also other cases before the court where the parties plaintiff assume a position precisely opposite to that taken by the claimant here, insisting that a claim does not uaccrue” until it has been rejected by an executive department, and that the statute of limitations cannot be set up against them, although more than six years may have elapsed, before suit brought, from the time their services were performed or their goods sold and delivered. It is, therefore, doubly necessary that a comprehensive and settled construction be given to the statutes.

There are three statutory provisions which directly bear upon this point of jurisdiction:

1. The initial, creative act establishing this court, (10 Stat. L., p. 612, § 1,) thus defines it: “ The said court shall hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, witli the government of the United States, which may .be suggested to it by a petition filed therein •, and also all claims which may be referred to said court by either house of Congress. It shall be the duty of the claimant in all cases to set forth a full statement of the claim, and of the action thereon in Congress, or by any of the departments, if such action has been had.”

2. The act reconstituting the court provides (12 Stat. L., p. 765, § 10) “That every claim against the United States, cognizable by the Court of Claims, shall be forever 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 act within six years after the claim first accrues.”

3. The same act also provides (§ 7) £l That in all cases of final judgments by said court, or on appeal by the said Supreme Court where the same shall be affirmed in favor of the claimant, the sum due thereby shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims.”

The question seems to be embarrassed with this dilemma: if, on the one hand, a claim need not be presented to the proper department, but may be sued on here, then all the statutory checks and means by which the debts of the nation are examined, classified, and carried to the proper appropriations may be set at naught, and a general appropriation for claims be made to cover every debt of every department; if, on the other hand, a claim must be rejected by the proper executive department before suit can be brought, then the claim does not11 first aoornen under the statute of limitations till it has been rejected, and the statute does not begin to run when the debt becomes due.

It is indeed suggested that inasmuch as all demands on the Treasury must be examined and passed upon wiibin a year from presentation that the diligent claimant will have five years left within which to bring suit; but I do not think that when the statute says sis years it means five; nor that a claimant’s judicial rights are to be affected by the defendant’s administrative agents.

But I do not accept as inevitable the alternatives of this dilemma. There are two less difficult and equally effective constructions to be put upon the statute:

1. The court, by express terms, is clothed with jurisdiction of all actions u founded upon any contract, express or implied,? Such is the provision of the initial act of 1855, (§ 1.) But when we come to the provision for the payment of our judgments, it is given exclusively by the act of 1863, (§ 7,) and the relief is limited to uany general appropriation made by law for the payment and satisfaction of private claims? If these judgments when paid were carried to the specific appropriations made for the respective departments, as is the case with claims sent into the court by a Secretary under the Act 25th June, 1868, (15 Stat. L., p. 75,) there would be less reason for making a claimant go to the proper department in the first instance. But an appropriation for the payment of “private claims” means an appropriation for claims which the executive departments have rejected, or of which they have no jurisdiction. The appropriation is for debts which were not to be paid out of the specific appropriations. Therefore, though the court may entertain jurisdiction under the one statute before a claim has been presented to the proper department for payment out of the proper appropriation, yet the court must exact this before giving relief out of the general appropriation, under the other statute. The practical effect of such a construction will be that the claimant who, through ignorance or oversight, has failed to present his claim for executive action before bringing his suit, may still do so, pendente lite. If the claim be allowed the suit will be discontinued; if it be rejected the government will gain all the advantage of the executive investigation. Nothing will be gained or lost by either party through having it rejected at one time instead of another.

2. If this construction of the statutes cannot be maintained, I still think it will be sufficient for a claimant to present his claim to the proper department and bring suit without waiting for its rejection, alleging in bis petition that no action bas been taken and no decision made. His rights will tben depend on bis own acts, and not on tbe acts of tbe adverse party’s clerks and agents.

Either of these constructions will avoid tbe objection well urged by counsel, that a claimant while waiting for a department to act might lose bis right of action; either will save this court from going to the opposite extreme and holding that a claim fifty years old may be prosecuted notwithstanding the statute of limitations, if it has only been rejected by a department within six years; either will save to the government the advantages of having a claim examined by the department properly responsible for its allowance.

A majority of the court incline to the belief that the presentation of a claim to an executive department is not a prerequisite to jurisdiction. They think, also, that, the point being new, this case should be remanded, with leave to the claimant, after he shall have presented his claim to the proper department, to amend his petition and make the necessary proof. Before doing so, however, we have determined to look into the merits, so as to save to the party needless expenseand delay if our conclusion on the merits should be adverse.

Tbe action is brought upon a charter-party entered into at the city of Louisville on the 3d of March, 1863, between Captain John H. Ferry, assistant quartermaster, and one T. C. Sweeney, the owner of the steamer Ben. Franklin. The rate agreed upon was $175 a day. No definite time was named in the charter, and the defendants were at liberty to discharge the steamer at any place, allowing a reasonable time for her return to Louisville.

The claimant subsequently complained of the rate allowed, and the quartermaster at Louisville, by an endorsement on the application, directed that the boat be allowed $200 per day. She remained apparently under the control of Captain Ferry, and was borne upon his returns for the months of March and April, but was, in fact, paid at the rate of $200 per day only up to and including the 20th March, 1863.

The steamer next appears upon the Mississippi, under the control of Captain Charles Parsons, an assistant quartermaster at St. Louis. In what manner or by what authority she was transferred from the quartermaster at Louisville to the quartermaster at St. Louis does not appear. On tbe 15th. September, 1803, her account was stated by Captain Parsons from March 21st to July 31st, at $140 a day, and this was paid and receipted for on the 22d of October following. Accounts for subsequent services were also stated and paid and receipted for, and these accounts and receipts do not refer to any charter-party.

The agent of the owner, it appears, remonstrated at the rate allowed, and on the- 19th December a settlement is reported on the quartermaster’s accounts, for service from the 21st March to the 31st August, at $5 per day, and the amount allowed thus in settlement was also receipted for by the agent of the owner as “in full of the above account.”

There are two distinctive facts which separate this case from those in which a reduction has been ordered by the Quartermaster General and a receipt been given by the owners. The first is that the boat appears for several months in service in another military department, and neither the accounts stated by the quartermaster nor the receipts given by the owner refer to the original charter-party. That charter-party was for no fixed period, and might have been terminated at any moment. The quartermaster at St. Louis does not seem to have been aware of the charter-party, and the owner does not- seem to have relied upon it, and the agent who collected the boat’s accounts does not seem to have presented it. These circumstances imply that when the steamer passed from one military department to another the charter Avas rescinded. The second distinctive fact is, that after the rate had been fixed at $140 a day, and after this had been paid by the quartermaster and received by the claimant, and after the boat had left the service, a settlement was made whereby the defendants paid $5 a day for the past services of the boat, in accordance Avith an agreement made between the quartermaster and the claimant’s agent.

Illegal and arbitrary exactions cannot be upheld by a court of justice, but anything which looks like the final compromise of a doubtful case should always be maintained. In this case there is the undetermined period of the charter, the new field in which the boat is found, the absence of all reference to the contract in the accounts which passed between the parties, and the still more significant fact that the owner never appealed to the Quartermaster General, and, until this suit was brought, never questioned the finality of his agent’s settlement. Upon this evidence we think this settlement should not be disturbed, and that leave to present the case to the proper department should not be granted.

The judgment of the court is that the petition be dismissed.

Oasey, Oh. J.,

concurring:

I do not think we have jurisdiction of this case, and hence I would dismiss the petition. It is a claim for army transportation, and the act of Congress of March 3,1817, (3 Stat. L., p. 366,) provides that all such accounts shall be submitted to the proper auditor or comptroller. The accounting bureaus were organized to settle accounts. The Court of Claims was established to adjudicate disputed claims. If we have jurisdiction of this case, we have the same of all accounts for the ordinary expenses of the government. This, I think, never was intended by Congress. The act of March 3,1797, (1 Stat. L., p. 512,) requires that an account in favor of a party shall be settled in the accounting department before it can be set off in a suit in which the Dnited States are plaintiffs. So the act of March 30,1868, (15 Stat. L., p. 1,) makes the action of the auditor and comptroller final and conclusive on the executive branch of the government, but subject to revision by Congress or the proper court. This necessarily implies there shall be a settlement first and a revision afterwards. The act of June 25,1868, (15 Stat. L., p. 76,) provides the methods by which such revision by this court shall be invoked and exercised, and describes the cases subject to-this revision to be such “as involve disputed facts or controverted questions of law.” Till it assume this character it is an account •, afterwards it is a claim, and cognizable by this court. To allow every creditor of the government his option to bring suit in the Court of Claims or have his account ad-adjusted at the department, would produce the wildest confusion in public accounts and overwhelm this court with business, oftentimes in a single day, which it could not dispatch in a year. We have no better means for adjusting accounts than the auditors and comptrollers have for trying and deciding judicial controversies. And if Congress had intended that each should exercise the functions of both, they would have provided the organization and machinery for each adapted to those ends. In the absence of any such provision I feel warranted in inferring that the legislature intended to confine each to its appropriate duties. There are many cases which may be brought originally in this court without having been submitted to a department or the accounting officers, among which may be named unliquidated damages for the breach of a contract, and the like. Such questions are essentially judicial in their nature and character. This is the reverse. It is in the first instance a pure matter of account, and therefore belongs exclusively to the department until it assumes such phase and character as to bring it within the range of judicial cognizance.

For these and other reasons I am for dismissing this petition.

Milligan, J.,

concurring:

I fully concur with the Chief Justice on the question of jurisdiction. But a majority of my brethren having on this question held to the contrary, I have, out of deference to their opinion, consented to examine the case on the merits, (not in any degree waiving my opinion on the question of jurisdiction,) and agree with them in dismissing the petition on the merits.

Peck, J., agreed with the majority of the court on the question of jurisdiction, but thought that the case should be remanded with leave to take further evidence.  