
    NEW RIVER COLLIERIES CO. AND CHESAPEAKE & OHIO COAL AND COKE CO., SELLING AGENTS OF THE NEW RIVER COLLIERIES CO., TO THE USE OF THE NEW RIVER COLLIERIES CO. v. THE UNITED STATES
    [No. B-170.
    Decided April 2, 1928]
    
      On the Proofs
    
    
      Eminent domain; acts of March, 4, 1917, and June 15, 1917; order for coal upon sales agent; right of nvming company to sue for just compensation; acceptance of prices fixed■ under Lever Act. — An order for coal, given by the Navy Department under the acts of March 4, 1917, and June 15, 1917, to a company acting as sales agent for mining concerns, was not obligatory upon the company that mined the coal, and the mining company is not the proper party plaintiff in a suit for just compensation. Before the sales agent can maintain suit, the procedure prescribed by the acts of March 4, 1917, and Juné 15, 1917, must be observed, and acceptance in full of the prices fixed by the Fuel Administrator under authority of the Lever Act (act of August 10, 1917) is acquiescence in the compensation so determined and precludes recovery of any further amount.
    
      The Reporter's statement of the case:
    
      Mr. Ira Jewell Williams for the plaintiff. Messrs. Ira Jewell Williams, jr., Charles L. Guerin, Francis R. Foraher, and Francis Skunk Brown were on the briefs.
    
      Mr. J armes J. Lenihan, with whom was Mr. Assistant Attorney General Herman J. GaTloway, for the defendant. Mr. Dan M. Jachson was on the br,iefs.
    
      Messrs. Edgar T. Beamish, J. Harry Covington, and Spencer Gordon, and Covington, Burlvng <& Rubles filed a brief as amici curiae.
    
    
      The court made special findings of fact, as follows:
    I. The New River Collieries Company, plaintiff herein, was at the time of the different transactions set out in these findings of fact a corporation duly organized under the laws of the State of New Jersey, having its principal office or place of business at 120 Broadway, New York City, in the State of New York, and engaged in the production of bituminous coal in Raleigh and Fayette Counties, West Ya. On September 15,1923, the New River Collieries Company sold its physical properties and is no longer an operating company, but is still in existence.
    II. The Chesapeake & Ohio Coal and Coke Company is now, and was at the times hereinafter mentioned, a corporation existing under the laws of the State of West Virginia and having its principal place of business at 120 Broadway, New York City. The Chesapeake & Ohio Coal and Coke Company, sometimes in these findings referred to (for brevity) as the Chesapeake Company, was organized prior to the organization of the New River Collieries Company and it had a good will in the coal business, which was thought to be valuable.
    III. The Chesapeake & Ohio Coal and Coke Company was the sales agent of the New River Collieries Company and also was sales agent for other companies. The New River Collieries Company did not sell its coal direct to consumers or the public. The Chesapeake Company sold, shipped, and delivered all of the coal mined by the New River Collieries Company and received all of the compensation therefor from the purchaser. The terms upon which it accounted to the owner of the mines do not appear. They had substantially the same board of directors and officers. The Chesapeake Company itself owned no mines and produced no coal. It bought coal from others and sold the same. The coal which is the subject matter of this suit was produced from its own mines by the New River Collieries Company.
    Prior to the order of June 14 the Chesapeake Company had entered into one or more contracts with the Navy Department for the furnishing of coal and the same had been furnished. The New River Collieries Company had never made a contract with the Navy Department.
    
      On March 20,1918, the Chesapeake & Ohio Coal and Coke Company applied to the United States Fuel Administration for a license to engage in and carry on the business of distributing coal and coke, and the correctness of the statements therein was sworn to by the president of said company. Among the statements in said application was one that the said company had “ no interest in any mine ” and another that “ no stockholder in this company owns any interest in any mine producing coal.” On April 12, 1918, license No. X-01129 was issued to said company “ to engage in and carry on the business of distributing coal and coke pursuant to the proclamation of the President dated March 15,1918, and the rules and regulations prescribed by him relating to such business.”
    During the period from July 4, 1917, to June 28, 1919, the Chesapeake & Ohio Coal and Coke Company applied for and received from the War Trade Board a large number of export permits, in the aggregate 110 permits, for the exportation of coal and under the authority of which permits that company exported coal to the amount of 610,500 gross tons. This tonnage exported under said permits was exported by the Chesapeake & Ohio Coal and Coke Company from Hampton Roads.
    IY. On June 14, 1917, the Secretary of the Navy wrote to the Chesapeake & Ohio Coal and Coke Company, which letter was received, as follows:
    “ Effective at once please be prepared to furnish your proportion of the total quantity of coal required by the Navy for the period ending September 30,1917; it being estimated that the tonnage which will be taken from your company during that period will amount to about 14,000 tons; delivery being required at the following-named points:
    “Navy Standard Mines, W. Va., 14,000 tons.
    “ The coal furnished will be from mines now on the Navy acceptable list.
    “The price to be paid for such tonnage as you may be required to deliver is to be determined later, and as the result of this department’s decision as communicated to the Committee on Coal Production, Council of National Defense, will be contingent on the cost of production, data concerning which are now being prepared. As an advance payment, however, this department will allow the unit of two dollars thirty-three and. one-half cents ($2.335) per gross ton, f. o. b. mines — although it is to be understood that any payments made at this rate will be subject to such increases or decreases as may be later decided upon as proper by reason of the ultimate decision with respect to cost of production, plus such reasonable profit as may be allowed.
    “ It will also be understood that the figure finally agreed upon as a proper amount to be paid your company will be subject to such increase or decrease in transportation or labor costs as may be exacted of you during the period of the formal contract.
    “ In making the allotments described herein every effort has been made to treat all suppliers equitably — consideration being given to the questions of production, convenience of transportation, and other governing factors. However, in view of the inability to reach a definite agreement as a result of the several conferences held on this subject, it has not been practical to as yet investigate as thoroughly as might be desired, so that if it is found a possible injustice has been done to any supplier, upon receipt of satisfactory evidence bearing out such contention, steps will be taken to remedy same in subsequent allotments in the best interests of all concerned. The forms of delivery required are to be those stated under the various classes of the within schedule allotted to your company.
    “ It is probable that deliveries under this order may be required in the immediate future, and you will, therefore, make all necessary preparations to meet such deliveries as may be called for, on which it may be necessary to make telegraphic assignments.”
    Y. During the period involved ,in this action, and for some years prior, the Navy Department of the United States maintained a list of mines known and designated as the “ Navy acceptable list.” This list contained the names and locations of all mines, the production of which had been inspected and tested by the Navy Department, and had been found to be up to the Navy Standard and fit for use by the Navy Department. Eccles mines 3, 5, and 6, Raleigh County, West Virginia, and Sun mines 1 and 2, Fayette County, West Virginia, were placed in 1916 on the Navy acceptable list, which also gave the Chesapeake Co. as the sales agent. These mines were at the time owned by the New River Collieries Company.
    All of the coal involved in this action came from Sun mines Nos. 1 and 2 and Eccles mines Nos. 3, 5, and 6.
    
      VI. On June 15,1917, the Paymaster General of the Navy sent the following telegram to the Chesapeake Company:
    “ Referring Secretary’s letter fourteenth instant please immediately direct your representative at mines to resume all rail shipment Tiburón.”
    VII. On June 22, 1917, the Paymaster General sent the' following telegram to the Chesapeake Company:
    “Attention invited this department’s telegram of nineteenth instant. Inspector again advises your operators have received no instructions to resume all rail shipments. Attention also invited Secretary Navy’s letter dated fourteenth June, which was prepared under authority acts approved four March and fifteen June, nineteen seventeen, and it is hoped will not be necessary impose penalty prescribed in those acts by reason your refusal to comply with order placed your company. Immediate reply is requested.”
    On the same day the said Chesapeake Company replied as follows:
    “Your telegram June twenty-second. We have no contract with Navy Department and have not agreed to supply coal at less than a very fair price of two dollars ninety-five cents. Did not understand Secretary’s letter June fourteenth to be an order issued pursuant to authority of two acts mentioned your telegram. Letter refers to no act of Congress and was written before one of the acts was passed. It is requested that you give reference to penalties prescribed in two acts referred to your telegram.”
    On the following day, June 23, 1917, the Paymaster General wired the Chesapeake Company that the Secretary’s letter of June 14,1917, constituted a formal demand for coal, and that the acts of March 4 and June 15, 1917, provided that the penalty for failure to comply with the Government’s request would be “possession of your property by Government.” This telegram further stated that the company would be expected to make up all delinquencies, and that in view of delays then occurring no consideration could be given on account of embarrassment which might result later because of increased tonnage to maintain specified weekly deliveries. On June 25, 1917, the Chesapeake Company wired the Paymaster General that in view of his statement that the letter of June 14, 1917, was a formal demand under the acts of March 4 and June 15, 1917, the company would comply and furnish the tonnage stated in that letter under protest, on the ground that the price the Government proposed to pay was unreasonable, inadequate, and unfair, and •that it would reserve “all its rights under such laws.” On June 27, 1917, the said Chesapeake Company wrote to the Paymaster General confirming the telegram of June 25,1917, and again protested against “the price and conditions suggested by the Government as unreasonable, inadequate, and unfair ” and against the amount of coal demanded as in excess of the tonnage it should be called upon to supply, and gave notice that it reserved its rights under the laws quoted by the Paymaster General. On June 28,1917, the Paymaster General notified said Chesapeake Company by wire that it should resume shipments of the 14,000 tons assigned to it at the rate of 1,500 tons weekly. On June 29, 1917, the said Chesapeake Company stated that it would begin shipping inland west to the extent of the tonnage specified in the Secretary’s letter of June 14, 1917, in approximately weekly proportions and under protest as to price and conditions, as stated in telegram of June 25 and letter of June 27, 1917. On July 3, 1917, the said Chesapeake Company wrote to the Secretary of the Navy acknowledging the receipt of his letter of June 14, 1917, advising him that it had notified the department of supplies that it considered there had been a confiscation of ,its coal and objecting to the price designated as inadequate and unfair and the amount of coal assigned as more than its share, considering the production of all the mines. On July 6,1917, the said Chesapeake Company notified the Navy supply officer at Norfolk, Virginia, that the coal it was furnishing to the Navy Department was not being supplied under any contract with the department but ,in obedience to the orders and demands made upon it by the Secretary. On July 7, 1917, the Secretary of the Navy wrote to the Chesapeake Company that no price had been fixed for coal in the letter of June 14,1917; that the unit of $2,335 per gross ton referred to therein was an advance payment, subject to increase or decrease, as might be decided upon after investigation as to the cost of production, etc.
    
      VIII. On July 26, 1911, the Paymaster General of the Navy notified the Chesapeake Company that the Navy Department was then preparing “Navy Order N-76” to confirm and supplement the Secretary’s letter of June 14, 1917, and called attention to the fact that the price mentioned in the Secretary’s letter of June 14, 1917, was “ f. o. b. mines,” and requested information from the company as to additional charges per ton covering in detail the cost of delivery to final destination, so that such items could be included in the proposed Navy order. The company protested that it should not be obliged to pay freight charges, and under date of August 13, 1917, the Paymaster General advised the company that in view of the fact that it was then making deliveries f. o. b. mines, it would not have to heed the letter of July 26, 1917, and stated that if the company should be requested to make deliveries at Tidewater it would be necessary for the company to then furnish information as to freight charges.
    IX. On August 16, 1917, the Paymaster General of the Navy forwarded to .the Chesapeake Company a document dated August 9, 1917, designated “ Navy Order N-76,” and signed by him and the same was received by sa,id company on August 17, 1917. Among other things said Navy order states that (1) pursuant to the provisions of the acts of Congress, naval appropriation act of March 4, 1917, and the urgent deficiency act of June 15, 1917, acting under the direction of the President, “ an order is hereby placed with you under the condition stated in subparagraph B (sub-paragraph A is eliminated) to furnish and deliver material needed by the Navy as listed below. Compliance with this order is obligatory, and no commercial orders shall be allowed by you to interfere with the delivery herein provided for.”
    Subparagraph B of said Navy Order N-76 provides as follows:
    “(b) As it is impracticable to now determine a reasonable and just compensation for the material to be delivered, the fixing of the price will be subject to later determination. You are assured of a reasonable profit under this order, and as an advance payment you will be paid the unit prices stated hereon, with the understanding that such advance payment will not be considered as having any bearing upon the price to be subsequently fixed. Any difference between the amount of such advance payment and the amount finally determined upon as being just and reasonable will be paid to you or refunded by you, as the case may be. The unit price stated herein will not prejudice any future price determination or be considered as a precedent in determining such increases or decreases as may be later dec.ided upon as proper.
    “ 2. Deliveries are required to be made, in whole or in part, as soon as possible and before the expiration of the time limit as stated herein. Delivery will be made to (see below) by Sept. 30, 1917, the time allowed for deliveries counting from June 14, 1917.
    “ 3. Dealers’ bills are to be sent to supply officer of shipyard, or station involved, who is authorized to prepare vouchers in payment. Payments will be made only by the Bureau of Supplies and Accounts, Navy Department, Washington, D. C.
    “ 4. If this order is based on deliveries f. o. b. works, your material can not be shipped except under orders from the naval inspecting officer for your district, and then only under a Government bill of lading to be furnished by that officer, in which case transportation charges must not be prepaid.”
    It is also provided in said Navy order that it confirms and supplements the letter from the Secretary of the Navy dated June 14, 1917, which is made a part of the order, and that the Chesapeake Company would be requested to furnish approximately 14,000 tons of coal at $2.335 per gross ton, f. o. b. mines, to be delivered at Navy standard mines, West Virginia; also that transportation and other charges connected with the handling of the coal should be included in the company’s bills to the Navy Department.
    A printed statement following the signature on this order that “ The above order is accepted subject to the conditions in paragraph b above ” was not signed by the Chesapeake & Ohio Coal and Coke Company.
    On the reverse side of Navy Order N-76, as well as on the reverse side of the other Navy orders in these findings mentioned, appear extracts from the sa.id acts of March 4, 1917, and June 15, 1917, and also conditions covering specifications, inspection of material to be delivered, etc., not material here.
    
      X. Oil August 21, 1917, the President of the United States issued the following Executive* order:
    “ By virtue of authority vested in me in the section entitled ‘ Naval Emergency Fund ’ of an act of Congress entitled ‘An act making appropriations for the naval service for the fiscal year ending June thirtieth, nineteen hundred and eighteen, and for other purposes,’ approved March 4, 1917, and in the section entitled ‘ Emergency shipping fund ’ of an act of Congress entitled ‘An act making appropriations to 'supply urgent deficiencies in appropriations for the Military and Naval Establishments on account of war expenses for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,’ approved June 15, 1917, I hereby direct that the Secretary of the Navy shall have and exercise all power and authority vested in me in said sections of said acts, in so far as applicable to and in furtherance of the construction of vessels for the use of the Navy and of contracts for the construction of such vessels, and the Completion thereof, and all power and authority applicable to $md in furtherance of the production, purchase, and requisitioning of materials for construction of vessels for the Navy and of, war materials, equipment, and munitions required for the use of the Navy and the more economical and expeditious delivery thereof.
    “The powers herein delegated to the Secretary of the Navy may, in his discretion, be exercised directly by him or through any other officer or officers who, acting under his direction, have- authority to make contracts on behalf of the Government.”
    Any authority of the Secretary of the Navy or the Navy Department or official thereof to place the orders, or to requisition coal mentioned in these findings, was that granted by the foregoing Executive order of August 21, 1917, and not otherwise, except as the same may be affected by the other Executive orders mentioned in these findings. The Secretary’s order of August 14 was not complied with until after the issuance of Navy Order N-76.
    XI. On August 21, 1917, the President issued an Executive order under the act of August 10, 1917, 40 Stat. 276, prescribing the scale of prices for bituminous coal-producing districts in the United States. The order declared it was provisional only and subject to change. The prices so fixed were changed from time to time in the several districts (see General Orders, Regulations, and Rulings of, the United States Fuel Administration). The price thus prescribed for run-of-mine “West Virginia” and “Virginia” coal was $2.00 per net ton f. o. b. mines, or $2.24 per gross ton f. o. b. mines. The price prescribed for run-of-mine “ West Virginia (New River) ” coal was $2.15 per net ton f. o. b. mines, or $2,408 per gross ton f. o. b. mines.
    XII. On August 23, 1911, the President of the United States issued an Executive order appointing Dr. H. A. Garfield United States Fuel Administrator by virtue of the power conferred upon the President under the said act of Congress approved August 10, 1911 (Lever Act). Said order directed the Fuel Administrator to carry into effect the provisions of the Lever Act and the powers and authority therein given to the President so far as the same applied to fuel, as set forth therein.
    The order further stated “ all departments and established agencies of the Government are hereby directed to cooperate with the United States Fuel Administrator in the performance of his duties as hereinbefore set forth.”
    On October 27, 1917, the President .issued an Executive order, effective October 29, 1917, amending his Executive order of August 21, 1917, as adjusted and modified by order of the United States Fuel Administrator, by adding the sum of $0.45 per net ton, or $0,504 per gross ton f. o. b. mines, to the prices so prescribed in the Executive order of August 21, 1917. On December 13, 1917, Dr. H. A. Garfield, Fuel Adminstrator, issued an order providing that the maximum price of bituminous coal sold and delivered to vessels for foreign bunkering purposes, or for export to foreign countries (except Canada and Mexico), should be the price prescribed for such coal at the mine at the time such coal left the mine, plus transportation charges from the mine to the port of loading, plus $1.35 per net ton, or $1,512 per gross ton, and that to this price there might be added the customary and proper charges, if any, for storage, towing, elevation, trimming, special unloading, and other port charges. On April 19, 1918, the United States Fuel Administrator issued an order effective April 20, 1918, directing that bituminous run-of-mine coal might be sold at a price not to exceed $0.20 per net ton or $0,224 per gross ton, f. o. b. mines, higher than the then existing prices as theretofore established. On May 24, 1918, the United States Fuel Administrator issued an order effective May 25, 1918, reducing the price of bituminous coal $0.10 per net ton or $0,114 per gross ton f. o. b. mines.
    XIII. On August 21, 1917, the Chesapeake Company addressed a letter to the Paymaster General of the Navy and inclosed Navy Order N-76, stating that the company refused to sign said order, for the reason that it considered the Secretary’s letter of June 14 a demand, or practically a confiscation of the coal,, and that under such conditions the company would supply the same, but that said Navy Order N-76 was not necessary and that it contained certain provisions or terms to which the company was not willing to subscribe. Much correspondence passed between the Navy Department and the Chesapeake Company in reference to the signing and acceptance of Navy Order N-76, and said Navy order was returned by the Paymaster General of the Navy to the company.
    On September 13, 1917, the Secretary of the Navy sent a telegram to the Chesapeake Company, referring to'the current Navy allotment for coal, advising the company, in order that it might be guided in connection with prospective obligations, that it would also receive an allotment for the period of six months subsequent to September 30, the proportionate tonnage under which might be slightly increased over that to be delivered under the current allotment.
    On September 24, 1917, the Paymaster General of the Navy sent a letter to the Chesapeake Company requesting that it return Navy Order N-76 signed, and stated that if the company objected to signing it to return it unsigned. On September 25, 1917, the Chesapeake Company again returned Navy Order N-76 unsigned to the Navy Department. In said letter the Paymaster General referred to authority previously given to change the form previously required on bills from “ Certified correct and just. Payment not received” to the new form of “Prices are certified to be those as stated in Navy Order No. —. Payment not received,” as having been given in order to eliminate the possibility of any qualification of the Chesapeake Company’s interests through the use of the first certificate.
    XIY. The Chesapeake Company protested against being compelled to pay freight charges on the coal, because of the fact that it was being furnished f. o. b. mines.
    The Secretary of the Navy, on September 17, 1917, wrote to the Chesapeake Company as follows:
    “ Replying to your letter of the 5th instant, in which attention is called to the fact that this department’s letter of June 14,1917, calls upon your company to deliver coal f. o. b. mines, whereas Navy Order N-76 implies that you may be required to deliver at other points, attention is invited to the statement ‘ confirming and supplementing letter .from the Secretary of the Navy dated June 14, 1917,’appearing on Navy Order N-76, under which it will be seen that your company may properly be called upon to make deliveries other than f. o. b. mines.
    “As far as the question of prepayment of freight is concerned, such coal as may be ordered for delivery other than f. o. b. mines will be delivered to destination required; all freight charges, lighterage, and other expenses incident thereto to be paid by your company. This procedure is the same as that applying to all suppliers of Navy standard coal, and it would not appear that the practice works any material hardship, as the freight charges and other incidental expenses are outstanding for . only a comparatively short time; reimbursement being promptly made to cover all charges incident to delivery to final destination, as noted in the Navy order referred to.”
    The question asked by the said company in its letter of September 5, 1917, referred to in the letter of the Secretary, was: “ Can we be required to advance funds for payment of rail freight, etc., on coal requisitioned by the Navy? We referred to your letter of June 14, 1917, which required delivery ‘At mines,’ whereas Navy Order N-76 implies that we may be required to deliver at other points. In our opinion, your letter did not intend to impose this burden upon us; in fact, we question whether such a requirement could be made under the act empowering the President to requisition coal. We have endeavored to put our question more clearly than before. Will you let us have a ruling as soon as you can conveniently do so ? ”
    XY. Under date of September 22, 1917, the Navy Department issued to the Chesapeake Company a document designated “ Supplementary Navy Order N-76,” received on September 27, 1917, as follows:
    “1. Pursuant to the provisions of the acts of Congress, naval appropriation act approved March 4, 1917, and the urgent deficiency act approved June 15, 1917 (quoted in part on reverse hereof), and acting under the direction of the President of the United States, an order is hereby placed with you under the conditions stated in subparagraph a (subparagraph b is eliminated), to furnish and deliver material needed by the Navy as listed below. Compliance with this order is obligatory and no commercial orders shall be allowed, by you to interfere with the delivery herein provided for.
    “ (á) The price herein stated has been determined as reasonable and as just compensation for the material to be delivered; payment will be made accordingly. If the amount is not satisfactory, you will be paid 75 per centum of such amount, and further recourse may be had in the manner prescribed in the above-cited acts. Please indicate conditions under which you accept this order by filling in and signing certificate below, returning original copy of order. If you state the price fixed as reasonable is not satisfactory 75 per cent only of the unit price will be paid. If payment in full is accepted it will be considered as constituting a formal release of all claims arising under this order.
    “(b) As it is impracticable to now determine a reasonable and just compensation for the material to be delivered, the fixing of the price will be subject to later determination. You are assured of a reasonable profit under this order; and as an advance payment you will be paid the unit prices stated hereon, with the understanding that such advance payment will not be considered as having any bearing upon the price to be subsequently fixed. Any difference between the amount of such advance payment and the amount finally determined upon as being just and reasonable avüI be paid to you or refunded by you, as the case may be. The unit price stated herein will not prejudice any future price determination or be considered as a precedent in determining such increases or decreases as may be later decided upon as proper.
    “(c) The order must be accepted and filled in any event, and if placed in accordance with subparagraph (a), you are only required to indicate below whether the price stated and fixed is satisfactory or is not satisfactory. If not satisfactory, a separate letter of comment and qualification must accompany the original order that is to be signed by you and returned. If order is placed under subparagraph (b), original is to be signed and returned. The duplicate copy may be retained by you in either case.
    “2. Deliveries are required to be made, in whole or in part, as soon as possible and before the expiration of the time limit as stated herein. Delivery will be made to (see below) by 30 June, 1918, the time allowed for deliveries counting from 1 October, 1917.
    “ 3. Dealers’ bills are to be sent to supply officer, ship, yard or station involved, who is authorized to prepare vouchers in payment. Payments will be made only by the Bureau of Supplies and Accounts, Navy Department, Washington, D. C.
    “(a) In forwarding bills, the original bill must bear the following certificate: ‘Prices are certified to be those as stated in Navy Order No. 76; payment not received.’
    “ 4. If this order is based on deliveries f. o. b. works, your material can not be shipped except under orders from the naval inspecting officer for your district, and then only under a Government bill of lading to be furnished by that officer in which case transportation charges must not be prepaid.
    “5. The conditions appearing on the reverse side hereon are made a part of this order.
    “ 6. Subparagraph (a) of paragraph 1 above is hereby modified to the effect that the prices as herein stated are subject to change from time to time under proper governmental authority; it to be understood that any change in prices — if not retroactive — will apply on the delivery of tonnage made immediately subsequent to the date on which such new prices become effective, provided the contractor is not delinquent on the particular delivery in question, in which latter event the old prices will apply; if subsequent published prices are held by proper authority to be retroactive, such price adjustments as may be necessary on deliveries already made may be proceeded with under this order.
    “ 7. In the case of delivery of bituminous coal, the conditions and details with respect to specifications, forms of delivery, etc., will, in general, be those outlined in schedules 932 or 933 — or both, as might apply — copies of which schedules are attached hereto. Anthracite coal will comply with the following specifications: To be best quality, dry, free from dust, dirt, slack and slate, or other foreign substances; to be paid for at the rate of 2,240 pounds to the ton, weighed on Government scales.
    “ 8. The kinds and approximate quantities of coal covered by this order are:
    
      
      
    
    “ (This order will also apply on deliveries from such mines as may later be admitted to the U. S. Navy Standard list of mines.)
    “ 9. Orders for delivery of the above-mentioned fuel may be placed either by the Bureau of Supplies and Accounts or through usual naval channels.
    
      “ 10. The supplier will be allowed reimbursement for expenses actually incurred in connection with transportation, lighterage, hauling, skidding, leveling, switching, carrying, wheeling, trimming, bunkering, storing, etc., and will be allowed other proper charges required to effect the form of delivery called for; all such charges to be itemized on the bills submitted, in each special case, for the fuel supplied; and such services shall be certified to as actually required and obtained at reasonable rates. The foregoing incidental expenses to be subject to the approval of the supply officer or other proper naval authority, except that in the case of prices covered by tariffs issued under authority of the Interstate Commerce Commission it will be necessary only to make proper reference on the dealer’s bills to the particular tariff concerned, showing points of origin and delivery. The suppliers’ invoices, in addition to showing the quantity and land of coal actually delivered, will also specifically state the district in which the coal originates in order that the unit of price may be properly identified.
    “ 11. This order is issued after consultation with the IT. S. Fuel Administrator.”
    The printed statement “ The above order is accepted subject to the conditions in subparagraph (a) above,” following the signature of the Paymaster General, was not signed. On March 9,1918, the Paymaster General of the Navy addressed a letter to the Chesapeake Company requesting that supplementary Navy Order N-I6 be properly executed as soon as possible and forwarded to the Paymaster General, United States Navy; and notified the company that it would not be possible to make any payments applying on the order until after it had been received by the Navy Department properly signed. Supplementary Navy Order N — 76 was on the same printed form as N-76, known as N. S. 550. The Chesapeake Company did not sign supplementary Navy Order N-76.
    XYI. On January 3, 1918, the Paymaster General sent a telegram to the Chesapeake Company, advising that in confirmation of action taken through the Tidewater Coal Exchange, a formal assignment was thereby placed covering-fifteen hundred tons of Navy standard coal, diverted from Pool One into Navy storage at Newport News from December 15, 1917, to January 1, 1918, and charged against the account of the Chesapeake Company, and for which no order had theretofore been placed by the Navy Department.
    XVII. Under date of June 15,1918, the Navy Department issued to the Chesapeake Company a form similar to supplementary Navy order N-76, designated “ Navy Order N-3005,” calling for the delivery by June 30, 1919, of coal as follows:
    
      
    
    There wás a provision contained in said order to the effect that “ this order is issued in accordance with requirements of, and in thorough cooperation with, the United States Fuel Administrator.” This order contained a printed statement at the foot thereof that “ The above order is accepted subject to the conditions of subparagraph (a) above,” which was not signed.
    The Chesapeake Company refused to sign “ Navy Order N-3005.”
    XVIII. The Chesapeake & Ohio Coal and Coke Company delivered to the Navy Department at Hampton Eoads, Va., for use on Government vessels 235,724.86 gross tons of coal, and also delivered f. o. b. cars Hampton Eoads, Va., for the Navy storage plant, 10,370.81 gross tons of coal. That company also delivered to the Navy Department at the mines of plaintiff in West Virginia 27,420.28 gross tons of coal and shipped same by rail to the Navy storage plant at Tiburón, Calif. Of this latter amount 8,881.11 gross tons were delivered by the Chesapeake & Ohio Coal and Coke Company to the Navy Department at the mines in West Virginia prior to August 21, 1917.
    The coal mentioned above, namely, 235,724.86 gross tons, was delivered at Hampton Eoads for use on vessels and was paid for as follows:
    
      
    
    For the 10,370.81 gross tons delivered at the Navy storage plant the Government paid $31,363.93 and freight thereon $19,685.66, making a total of $51,049.59.
    For the 27,420.28 gross tons shipped to Tiburón, Calif., a part thereof, 10,732.54, was delivered under Navy Order N-76 and the Government paid therefor $27,647.04, and for 16,687.74 gross tons thereof delivered under supplementary Navy Order N-76 the Government paid $47,835.90, making a total of $75,482.94.
    The Government paid a total of $821,500.37 for coal and for freight thereon $444,454.33, making an aggregate of $1,265,954.70.
    The payments mentioned above were made in each case to the Chesapeake & Ohio Coal and Coke Company.
    The Government also paid on account, of the coal delivered for use on vessels at Hampton Eoads, for trimming charges, war tax on freight, and other items, the sum of $29,486.39.
    The United States has paid the Chesapeake & Ohio Coal and Coke Company the sum of $1,265,954.70 for the coal involved in this action. These payments were made by the Government on the basis of the invoice price as shown on the face of the invoices rendered the Government as aforesaid.
    The prices paid were in each instance those prescribed from time to time by the Fuel Administrator. The dates of the delivery of the several shipments and the quantities are shown in exhibits to the petition.
    XIX. During the time that shipments were being made to Tiburón, California, the Government maintained inspectors at the mines, who inspected each car of coal so shipped. While shipments were being made to Tidewater, inspectors were there occasionally, and while there inspected each car of coal that was shipped.
    XX. All of the coal shipped by the Chesapeake Company, as aforesaid, was received and used by the Government of the United States.
    XXI. The Chesapeake Company rendered invoices for all of the coal delivered and placed thereon a certificate, wherein it was certified that the amount stated therein was correct and just and that payment had not been received. These invoices were on a printed form reading as follows:
    120 Broadway, New York, N. Y. (Date.)
    Navy DepartmeNt,
    
      Bureau of Supplies and Accounts, Washington, D. O.
    
    Bought of The Chesapeake & Ohio Coal & Coke Co.
    (Selling agents New River Collieries Co.)
    New River Admiralty Smokeless Coal.
    Terms: Invoice No_
    (Description of coal furnished.) Order No._
    (Certificate required by Navy Dept.)
    Loaded into:
    Payable in New York Exchange, at 120 Broadway, N. Y.
    The certificates on the printed form of invoice were changed from time to time, some of them showing that the coal was furnished in accordance with the price stated in Secretary Daniels’ letter of June 14, 1911, others showing that the prices as certified were those as stated in the Navy orders, and again others showing that the prices stated therein 'were based on the provisional prices prescribed in the President’s proclamation of August 21, 1917.
    XXII. The Navy Department forwarded to the Chesapeake Company approved public bills, upon which payments were made by the Government to that company. These public bills were identical in form, and on each one the printed words “ Contract No.” were deleted by a series of typewritten crosses, and above the deletion was typed the insertion “Navy Order N-76,” “Supplementary Order N-76,” and. “ Navy Order N-3005,” during the periods ■covered by the respective orders. Except as herein stated, neither the President of the United States, nor anyone acting on his behalf, ascertained and determined just compensation for the coal involved herein, and it does not appear that the Chesapeake Company applied to the President or his agency to determine the same.
    XXIII. The domestic market value of the 235,724.86 gross tons of coal delivered at Hampton Roads, Virginia, as described in Finding XVIII, was $1,115,222.35 as of date of delivery. There was paid to the Chesapeake & Ohio Coal and Coke Company by the Government for said coal $1,139,-422.17, which included the advance prices stated in the different Government orders and the freight and cost of handling the coal. The difference between the domestic value of said coal and the amount paid by the Government was $24,199.82 in favor of the Government.
    The domestic market value of 10,370.81 gross tons of coal delivered at Hampton Roads, Virginia, as described in Finding XVIII, was $51,066.89 as of date of delivery. There was paid to the Chesapeake & Ohio Coal and Coke Company by the Government for said coal $51,049.59, which included the advance prices stated in the different Government orders for said coal and the freight and other costs of handling the coal. The difference between the domestic market value of said coal and the amount paid by the Government was $17.30 in favor of said company.
    The domestic market value of the 27,420.28 gross tons of coal delivered to the Navy Department at the mines in West Virginia was $92,904.93 at the date of delivery. There was paid to the Chesapeake & Ohio Coal and Coke Company by the Government for said coal $75,482.94. The difference between the domestic market value of said coal and the amount paid by the Government was $17,421.99.
    
      The domestic market value of 8,608.70 gross tons of coal delivered to the Navy Department at the mines in West Virginia prior to August 21, the date of the President’s Executive order authorizing the Secretary of the Navy to exercise the powers conferred by the acts of March 4, 1917, and June 15, 1917, was $30,027.15 at the date of delivery. There was paid to the Chesapeake & Ohio Coal and Coke Company by. the Government for said coal $20,349.83. The difference between the domestic market value of said coal and the amount paid by the Government was $9,677.32 in favor of said company.
    There ivas a market for coal for export purposes at and near Hampton Roads during the period in which the coal involved herein was delivered, and there was a market price obtaining therefor, which was $1.512 higher per ton than the domestic market price.
    If such market price for bituminous coal for export to foreign countries and for foreign bunkering purposes, during the period in which the coal involved herein was delivered, be applied to the 235,724.86 gross tons of coal delivered as aforesaid at Hampton Roads to the Navy Department for vessels and barges, the market value of the coal was $1,471,-638.34.
    If such market price be applied to the 10,370.81 gross tons of coal delivered at Hampton Roads for the Navy storage plant at Norfolk, Va., the market value of the coal was $66,746.55.
    If such market price be applied - to the 27,420.28 gross tons of coal delivered to the Navy Department at mines in West Virginia, the market value of the coal was $134,364.39.
    XXIV. Several letters and telegrams were sent to the Chesapeake Company by the Paymaster General of the Navy informing the company that unless the company signed the Navy orders and returned same to the Navy Department no payments would be made for the coal delivered. In answer to these letters the Chesapeake Company stated that it considered that the orders gave the company the right to question the price and that the company would not sign the orders. Some time thereafter a check was delivered to the Chesapeake Company, without an accompanying letter, paying for-the largest portion of the coal that had been delivered to the Navy Department. This check was cashed by the Chesapeake Company, and thereafter other checks, paying for the coal delivered on the basis of the invoice price, were received and cashed regularly by the Chesapeake Company. The last payment was made July 23,1919. The amount paid to the said company is 100 per cent of the advance prices named in the Navy orders, as amended by the various orders referred to, together with such freight and handling charges on coal shipped from the mines to Hampton Roads as were paid by the Chesapeake Company.
    XXV. The prices claimed for all coal delivered to the Navy Department at Hampton Roads include the freight on such coal from mines in West Virginia to Hampton Roads. The export prices claimed for the 27,420.28 gross tons delivered to the Navy Department at the mines in West Virginia do not include any freight charges, such coal having been shipped by rail from the mines in West Virginia to Tiburón, California, and the Government having paid the freight charges on the same.
    XXVI. All of the coal involved in this suit was mined by the New River Collieries Company from its mines in West Virginia and belonged to it. When and as cars were furnished by the railroad company, it was loaded. The deliveries were as hereinbefore stated.
    XXVII. In March, 1924, the Chesapeake & Ohio Coal and Coke Company executed an agreement, which has been filed in this case and is as follows:
    “ Whereas, The New River Collieries Company, a corporation organized and existing under the laws of the State of New Jersey, has heretofore instituted proceedings or suit against the United States of America in the United States Court of Claims for the recovery of just compensation for coal commandeered by the Navy Department of the United States from the said The New River Collieries Company during the period beginning on July 6th, 1917, and ending on June 30th, 1919, such proceeding or suit having been instituted by the filing of a petition No. B-170, in the said United States Court of Claims, and a first and second amended petition, bearing the same petition number, having heretofore been filed in the said proceeding or suit; and
    
      “ Whereas, the said coal so commandeered belonged to The New River Collieries Company, but was commandeered in pursuance of commandeering orders addressed to The Chesapeake & Ohio Coal and Coke Company, a corporation organized and existing under the laws of the State of West Virginia, which was, at the time of such commandeering, the exclusive selling agent of The New River Collieries Company, wherefore, a doubt has arisen as to whether the said The Chesapeake & Ohio Coal and Coke Company should not be, or may not properly be, a party plaintiff to the said proceeding or suit; and
    
      “ Whereas, a third amended petition is about to be filed in the said proceeding or suit in which The Chesapeake & Ohio Coal and Coke Company, the selling agent of The New River Collieries Company, to the use of The New River Collieries Company, is joined as a party plaintiff with The New River Collieries Company for a further assurance to the defendant, the United States of America, against any future claim by The Chesapeake & Ohio Coal and. Coke Company growing out of the said commandeering orders;
    “ Now, therefore, know all men by these presents, that The Chesapeake & Ohio Coal and Coke Company does hereby admit and declare that it does not have and never had any right, title, claim or interest, in or to the bituminous coal, the property of The New River Collieries Company, which was commandeered by the Navy Department of the United States of America during the period from July 6th, 1917, to June 30th, 1919, pursuant to commandeering orders addressed to The Chesapeake & Ohio Coal and Coke Company or otherwise, and it does hereby confirm The New River Collieries Company’s exclusive interest in and right to sue to recover just compensation for the said bituminous coal.”
    The court decided that plaintiff was not entitled to recover.
   Campbell, Chief Justice,

delivered the opinion of the court :

This is a suit by the New River Collieries Company claiming a large sum for coal alleged to have been taken by the Government at or' near Hampton Roads, besides a smaller quantity taken at the mines. Payments were made from time to time upon invoices rendered when the coal was delivered, and in the amounts' shown by the invoices, but the claim is that these did not afford the just compensation to which the plaintiff was entitled.

The transactions out of which the suit grows had their origin in a letter by the Secretary of the Navy to the Chesapeake & Ohio Coal and Coke Company,' dated June 14, 1917, followed by three orders signed by the Paymaster General of the Navy and known as Navy Order N-76, Supplementary Navy Order N-76, and Navy Order N-3005. The first of these orders, dated August 9, 1917, called for 14,000 tons of coal at a stated price “ f. o. b. mines ”; the second dated September 22, 1917, called for 50,000 tons f. o. b. mines and 31,000 tons at Newport News; and the third order, dated June 15, 1918, was for 200,000 tons of coal to be delivered at Hampton Roads by June 30, 1919. Each of .them stated a price and also that it was issued pursuant to the provisions of the acts of March 4, 1917, 39 Stat. 1193, and June 15, 1917, 40 Stat. 182, and that compliance was obligatory. These orders were directed to the Chesapeake & Ohio Coal and Coke Company and all correspondence and other communications were had with that company. Invoices, at ,the stated prices or at prices prescribed from time to time by the Fuel Administrator, were rendered in its name and payments thereof were made to the same company. No order was issued to nor was any communication had with the New River Collieries Company. One of the questions in the case is whether, in these circumstances, the New River Collieries Company can maintain this suit.

The alleged dates of taking are between July 1, 1917, and June 30, 1919. The original petition was filed August 4, 1922. A fourth amended petition was filed December 21, 1926. In accordance with a rule of court in that regard, the petition mentions the statutes on which the cause of action is based, averring that the claim is founded upon the Fifth Amendment; upon the act of March 4, 1917, 39 Stat. 1193; upon the act of June 15, 1917, 40 Stat. 182; and that jurisdiction is conferred on this court by these acts to award a balance of just compensation. Where private property is taken for' public use there can be no doubt that just compensation is due. The owner was entitled to the full money equivalent of the property taken, and thereby to be put in as good condition pecuniarily as it would have occupied if its property had not been taken,” per Mr. Justice Butler in United States v. New River Collieries Co., 262 U. S. 341, 343, citing Seaboard Air Line Ry. Co. v. United States, 261 U. S. 299. See also Brooks-Scanlon Corporation v. United States, 265 U. S. 106, 123; Liggett & Myers v. United States, 274 U. S. 215. It is also laid down in the case first cited (262 U. S.) that where private property is taken for public u,se and there is a market price prevailing at the .time and place of the taking that price is just compensation. The rules thus stated must be regarded as settled. But it is equally well settled that the taking must be authorized by Congress and that the officer assuming to act for the Government should have authority in that regard. Hooe case, 218 U. S. 322, 336; North American Co., 253 U S. 330, 333. Where the statutes relied upon prescribe the procedure there must be at least a substantial compliance with them. The process whereby the Government is held to have expropriated the citizen’s property is designed to be an orderly one.

1. As to the power to take, it is said in the Hooe case, supra (p. 336), that the taking of private property by an officer of the United States for public use without being authorized, expressly or by necessary implication to do so, by some act of Congress, is not the act of the Government. And in the North American, Co. case, supra (p. 333), it is said that although Congress may have conferred upon the executive department power to take property for a given purpose, the Govérnment will not be deemed to have so appropriated private property “merely because some officer' thereafter takes possession of it with a view to effectuating the general purpose of Congress.” It was held in this case that authority conferred by the act on the Secretary of War could not be exercised by the commanding general of the department of Alaska, where the property was located, unless he was authorized by the Secretary of War.

The authority for placing the orders in the instant case is averred to be and must primarily be found in the acts of March 4, 1917, and June 15, 1917. The allegation that the claim is founded on the Fifth Amendment can only relate to the just compensation it requires because there was no authority acted upon or suggested as being in the President or anyone else to requisition coal, so far as concerns this suit, except the two acts mentioned, or the admittedly extensive powers granted by the Lever Act of August 10, 1917. Except as granted by these acts there was a lack of authority to take. Hooe case, supra; North American Co. case, supra. The act of March 4, which expired by limitation on March 1, 1918, authorized the President to place an order with any person “ for such ships and war material ” as required “ and which are of the nature, kind, and quantity usually produced or capable of being produced by such person.” The act of June 15 extended this grant of authority because, while using in general the terms of the earlier act it authorized the President to place an order for ships “ or material,” adding also a definition of material that gives a broader meaning than “ war material ” could have. Compliance with such orders was declared to be obligatory. Armed with this authority the President could place obligatory orders with designated classes of persons. He was authorized to exercise these granted powers through such agency as he should determine and by Executive' order set forth in the findings, and under date of August 21, 1917, the President directed that the Secretary of the Navy should have and exercise all power and authority vested in the President in the two acts “ in so far as applicable to and in furtherance of the construction of vessels for the use of the Navy and of contracts for the construction of such vessels and the completion thereof, and all power and authority applicable to and in furtherance of the production, purchasing, and requisitioning of materials for construction of vessels for the Navy and of war materials, equipment, and munitions required for the use of the Navy and the more economical and expeditious delivery thereof.” The authority so delegated could be exercised by the Secretary directly or through officers “ who, acting under his direction, have authority to make contracts on behalf of the Government.”

It is quite plain that the President did not delegate or intend to delegaté to the Secretary of the Navy or officers of the Navy all of the power and authority vested in him by these acts. The use in the order itself of the phrase “ in so far as applicable to and in furtherance of ” certain things suggests a limitation, and, as will appear, there was a reason for it. The only words in the order that can embrace fuel or coal are war material,” and it is noticeable that the reference to war materials adopts the restricted phrase in the act of March 4 instead of the broadly defined “ material ” used in the act of June 15. If this order stood alone and there were no other legislation than the two acts, the construction of the order might be more liberal than the mere words admit of, because of the conditions giving rise to the power granted by the statutes. But after the act of June 15 another act w’as passed, that of August 10, 1917, known as the Lever Act, which very much increased the powers of the President under former acts. By section 10 he is authorized to requisition, among other things, “ fuels and supplies ” necessary for the Army and the maintenance of the Navy, and by other sections he may fix prices and take control of coal mines. On the very day, August 21, on which the Executive order delegated powers to the Secretary of the Navy, another Executive order was issued prescribing, provisionally, the prices of coal, and on August 23 yet another Executive order appointed the Fuel Administrator and conferred on him the powers given to the President by the Lever Act so far as the same applied to fuel, and also directed all departments of the Government to cooperate with the Fuel Administration. Two of the three orders in this case were issued from the Bureau of Supplies and Accounts after August 21, both of them making express reference to the Fuel Administration. It would seem reasonable, therefore, to hold that when the Executive order of August 21 was actually issued consideration had been given already to the order of August 23 that would delegate powers to the Fuel Administrator and that the one order was not intended to overlap or interfere with the powers of requisition conferred by the other under the Lever Act. The two earlier acts authorizing the placing of obligatory orders provided for their enforcement where necessary by taking charge of the factory or plant. The Lever Act authorizes taking over of plants and has especial reference to coal mines. Is it to be supposed that the Executive orders conferred on the Navy Department the power to take over a coal mine and thereby interfere with the broader powers conferred by the act of August 10 that were delegated to the Fuel Administrator? This view harmonizes with the New River Collieries Co. case, supra, because the claim there was that coal was requisitioned at Hampton Eoads for use of the Navy between the dates of September 17, 1919, and February 1, 1921, the opinion stating that the taking was under sec. 10 of the Lever Act. In the opinion of the Circuit Court of Appeals (276 Fed. 690) it is said that the Government “through the Navy Department requisitioned a large tonnage of coal belonging to the Collieries Company * * * and tendered payment at a price named by the Navy Department.” The orders themselves do not appear otherwise than as stated. But referring to this case, the petition in the instant case avers that the facts “ as to the method of commandeering were the same as in the case at bar,” the commandeering orders having been directed to the Chesapeake & Ohio Coal and Coke Company, and the plaintiff’s brief characterizes it as a suit “ between the same parties and under like facts.” Assuming the facts to be as thus stated, the case mentioned adds force to what we have said, because the opinion of the Supreme Court declares it to be a case under section 10 of the Lever Act, and it could not have escaped attention that of suits based on. this section the district courts have exclusive jurisdiction. Pfitsch case, 256 U. S. 547. Manifestly, the same facts could not give rise to a requisition under a different statute without defeating the intention to confer exclusive jurisdiction under the section mentioned. If, on the other hand, the orders in the New River Collieries Company case purported to be under the Lever Act and similar to those found in the White Oak Coal Co. case, 15 Fed. (2d) 474, the change in the form of the order from the acts of March 4 and June 15 is significant as indicating a lack of authority under the latter to accomplish the desired requisition. This act of June 15, 1917, was substantially reenacted in 1918, 40 Stat. 720, and was in force during all the time in question, as was also the Executive order of August 21 delegating power to the Navy Department. If the coal could be requisitioned under this act, why turn to the other statüte ?

Tn two cases presenting claims for coal and based upon orders under the acts of March 4 and June 15 this court held that a contract arose whereby the Government was bound to pay the market price of the coal delivered. Consolidation Coal Co. case, 60 C. Cls. 608; Pocahontas Fuel Co. case, 61 C. Cls. 231. Both of these cases were for large quantities of coal furnished the Navy during parts of the period here involved. In a later case, Liggett & Myers, 61 C. Cls. 693, that did not involve the authority to requisition fuel, this court held there was a contract. The case was tried upon a stipulation of facts that contained no reference to the powers delegated by the President under the acts of March 4 and June 15. No question was raised upon the authority of the Secretary, the case turning in this court upon the right to interest on an admitted balance. The Supreme Court reversed the judgment and held that the property had been taken by eminent domain, referring, among others, to the general defense act of 1916, which can have no possible application in the instant case, because the fact averred and found to be is that the authority in the Navy Department to place the requisition orders rests upon these acts and the Executive order of August 21. The decision in Liggett & Myers does not qualify the New River Collieries Company case or affect the ruling that that suit was properly brought under section 10 of the Lever Act.

2. But in addition to this question of authority is that of a want of substantial compliance with the procedure directed by these statutes. They provide for just compensation, to be determined by the President, and if the amount so determined be unsatisfactory the person entitled may accept seventy-five per cent thereof and sue for the additional sum that will make just compensation. The averments of the petition and the facts are to the effect that no such action has ever been taken. The orders mentioned a price that would be paid and further that if unsatisfactory the right under these statutes to- take 15 per cent was open. The Chesapeake & Ohio Coal and Coke Company, to whom alone the orders were directed, repeatedly stated its purpose to reserve all rights under the statutes named in the orders. It rendered its invoices at the prices stated, or at such prices as were prescribed from time to time by the Fuel Administration. The allegation, accordingly, is that the payments of these

invoices were for the entire tonnage at the full prices mentioned, and this allegation is sustained by the proof. The Government paid the freight besides some other charges, which included war tax. These acts provide a method and procedure whereby the Government may be made to respond. It has been held that if the Government attaches • purely formal conditions to its consent to be sued these conditions must be complied with and the words being in the statutes “ they mark the conditions of the claimant’s right.” Rock Island Railroad Co. case, 254 U. S. 141, 143. In the Seaboard Air Line Railway Co. case, supra, and the case of New River Collieries Company, supra, it appeared that action had been taken. In the Brooks-Scanlon Corporation case, 265 U. S. 106, and a number of similar cases, and in Liggett & Myers case, supra, there was an ascertainment of compensation which the parties would not accept. The acceptance of 100 per cent of the prices fixed in the order does not deprive the court of jurisdiction of the case. Houston Coal Co. case, 262 U. S. 361. But such acceptance does concern the merits. United States v. McNeil & Sons, 267 U. S. 302; White Oak Coal Co. v. United States, 15 Fed. (2d) 474. The latter was a suit brought in the district court on account of a requisition order by the Navy Department for coal to be delivered under the Lever Act. The order contained the provision that if the price was not satisfactory 75 per cent of it could be accepted and suit brought for the additional sum that would afford just compensation. The plaintiff accepted the prices fixed by the order and afterwards brought suit. The court says.(p. 477) : “Under the law, as well as under the offer of the Government, plaintiff was entitled to the full amount of the price fixed, only in the event it was accepted in full satisfaction. It had the right to decline the Government’s offer and sue for the value of the property taken, if it desired to do so, but in that event it was entitled, not to the full amount of the price fixed, but only 75 per cent thereof. It obtained the full price by accepting the offer, certifying the price fixed as satisfactory, and rendering invoices, not for 75 per cent, but for the full price, which it accepted without protest.” In the instant case there was no acceptance of the Navy orders as satisfactory in the first instance, but the full price was ultimately paid upon invoices rendered and payments made without protest. As was further said in the case just cited: “ It voluntarily elected to pursue one of two inconsistent remedies as a means of obtaining compensation for its property. Havjng obtained benefits thereby which it could not otherwise have obtained, it is estopped from pursuing the other remedy.” Certiorari was denied in this case. (273 U. S. 756.) The instant case was begun by petition filed in August, 1922. This was subsequent to the decision of the Circuit Court of Appeals in New River Collieries Co. case, 276 Fed. 690, though the requisition of coal there involved was long after the alleged requisition in the instant case. The Chesapeake & Ohio Coal and Coke Co. had been paid the domestic market prices, and notwithstanding its early declaration that it would assert its rights under the two acts mentioned in the orders, it took all of its invoice prices and did not confine itself to the right afforded by these acts. Nearly five years after the first shipment and three years after the last the suit is brought by the New River Collieries Company to recover the export value of the coal. Relying upon the statutes there ‘should be compliance with them. The objections made after the first order was issued sufficiently apprised the department of the unwillingness of the Chesapeake & Ohio Coal and Coke Company to accept the prices. But it could change its view on this subject, and we think it should be held to have done so, when it received full payment. Though these statutes were subsequently repealed, the powers granted by them to the President to determine compensation were conferred upon the United States Shipping Board Emergency Fleet Corporation by the act of June 5, 1920, 41 Stat. 989, thus indicating that Congress regarded such action as a prerequisite to recovery in court. And whatever may be said about the effect of the Executive order of August 21, 1917, it clearly did not delegate this duty of determining just compensation. The orders issuing from the Navy Department stated prices that varied from time to time in accordance with rulings of the Fuel Administration, but the Navy Department could not fix prices, and for the action of the Fuel-Administration there is no remedy except in the District Court. Pfitsch case, supra. The prices the latter prescribed were applicable generally to producers, distributors, and vendors of coal, and notwithstanding greater prices could possibly have been realized in open markets, no liability of the Government to the owners or vendors arose from the regulation of prices. Pine Hill Coal Co. case, 259 U. S. 191, 55 C. Cls. 433; Morrisdale Coal Co. case, 259 U. S. 188, 55 C. Cls. 310. For the reasons that the full prices have been accepted and that the statutory procedure is not observed, we think the plaintiff’s suit should fail.

3. Another question urged by the defendant is that the New Kiver Collieries Company can not maintain this suit. The acts provide for the placing of “ an order with any person” for material of the nature, kind, and quantity usually produced or capable of being produced “by such person.” A refusal to comply with the order arms the President or his agent with power to enforce it by taking possession of “ any ship, charter, material, or plant of such person” and use the same, the act of March 4 employing the term “ factory ” where “ plant ” is used in the later act. There can be no doubt that the right of eminent domain may be exercised, when authorized, outside of these statutes, but when they are invoked and relied upon they designate the persons to be affected. As already stated, the orders were placed with the Chesapeake & Ohio Coal and Coke Company, a West Yirginia corporation. Indeed, the first communication was sent to that company on June 14 — prior to the enactment of the statute of June 15 and prior to any delegation by the President of authority — and it was not until afterwards assured that the order was obligatory under the two acts that it proceeded to comply Avith its terms. That company owned no coal mines and had no coal except such as it might acquire from others. It bought and sold coal and was the sales agent of the plaintiff and also of other coal-mining corporations. The facts show that all of the coal involved in this action was delivered by the Chesapeake & Ohio Coal and Coke Company. All of the correspondence relative to the coal or the orders was had between this company and the Navy Department. It arranged with the carrier for shipments and “ it was understood by the Government and the Chesapeake & Ohio Coal and Coke Company tbat the company was to pay the freight and other charges for. handling the coal * * * and the Government was to reimburse said company therefor.” The prices stated in the orders, which were increased from time to time in accordance with those fixed by the Fuel Administration under the Lever Act, were paid to this company for the coal delivered. The plaintiff in this action is the New River Collieries Company, a New Jersey corporation, which owned and operated coal mines. It sold its coal through the Chesapeake & Ohio Coal and Coke Company, the stock of which company it owned. The officers of the two companies were substantially the same. The coal came from the mines of the plaintiff company. Its mines, among others, appeared on the “ Navy Acceptable List ” kept by the Navy Department. The coal destined for western points was shipped on Government bills of lading but that delivered at tidewater was shipped under arrangements made between the railroads and the Chesapeake & Ohio Coal and Coke Company, whereby the latter was billed from time to time for the coal delivered. There was nothing in the orders requiring that the coal be sent from the plaintiff’s mines, and there were other mines from which it could have been shipped. The statutes authorize the placing of orders with the owner, but if not so placed they are not obligatory. If the Chesapeake & Ohio Coal and Coke Company had refused or failed to comply with the orders there was no coal or mine to be taken possession of, because it had neither. The orders placed with it were not roving commissions to be placed as it saw fit. The plaintiff company was not obliged to furnish any coal and its mines could not have been seized. It had none of the burdens and was not subject to any of the penalties prescribed by the acts. It is the right to enforce compliance that gives the orders their obligatory effect. The Chesapeake & Ohio Coal and Coke Company’s invoices as rendered from time to time were headed Navy Department, “ Bought of the Chesapeake & Ohio Coal and Coke Company (selling agents New River Collieries Company),” and this is the only reference to the latter in any communication. The terms under which the coal was delivered to this sales agent do not appear. The phrase itself is indefinite. We had occasion to consider the activities of selling agents in J. H. Lane & Co., 62 C. Cls. 721, 722, 731, where the selling agent guaranteed the payments. It is entirely consistent with what was done to say that the term sales agent is descriptive of the person. The New Biyer Collieries Company furnished the coal, loading it on the cars, for the Chesapeake & Ohio Coal and Coke Company. It was not ordered by the Government to do this. Its action was voluntary. The prices prescribed were as much as it could have received from any purchaser at the mines. The principal objections interposed by the Chesapeake Company were made in 1917. In June of that year that company notified the Navy Department that it had “not agreed to supply coal at less than a very fair price of $2.95,” and the prices in Navy order N-3005 were above this amount. But the New Biver Collieries Company made no objection at any time until this suit was brought in 1922. Until this event no communication passed between it and the Government. If in these circumstances it can recover as for a requisition of its coal, the language of the two acts relied upon becomes meaningless. It has had no orders placed with it, and was not required by the Government to furnish coal. It has not called upon any governmental agency to determine compensation. It has received the full price offered and has never uttered a protest or objection until, as stated, this suit was brought. Having taken this position and obtained benefits thereby, it can not have recourse to a statute with which it has never complied. White Oak Coal Co., supra. Parties when subjected to requisition or obligatory orders, can avail themselves of the benefits of the statute in the increase of the prices and allowance of interest on deferred payments, and so also may the Government avail itself of the fact that its orders were not directed to and were not obligatory upon such parties.

In an amended petition filed in 1924 the Chesapeake & Ohio Coal and Coke Company is added as a party suing for the use of the New Biver Collieries Company. This' is done, plaintiff insists, out of abundance of caution and not because it is necessary. If it is a necessary party, a large part of the claim would be barred by the statute of limitations. The amendment does not aid the plaintiff.

In plaintiff’s brief appear references to a stipulation entered into in 1924 between plaintiff’s attorney and the then Assistant Attorney General assigned to this court. His successor refused to be bound by this stipulation, giving timely notice to the other side. Evidence was afterwards adduced on the disputed questions. This court more than forty years ago declared that while the Attorney General had authority by statute to conduct suits in this court, and could do every act which an attorney at law might lawfully do in a suit between individuals, he can not bind the Government by admitting facts adverse £o it and not officially known to him to be true. See Campbells case, 19 C. Cls. 426, 429. This rule has been somewhat relaxed, and cases are frequently tried upon stipulation duly signed, but the right to reject a stipulation has not been surrendered. This is not to say that the Attorney General may not consent' to a judgment upon agreed facts. It is to say, however, that all below him may not be accorded the like authority. It may be seriously questioned whether the Assistant Attorney General had knowledge of the facts, but, at any rate, whether the facts or conclusions be in issue, the stipulation was made, “ subject to the approval of this honorable court.” And the court does not approve it. As already said, the plaintiff has had full opportunity to make all proof it desired.

Upon the whole case our conclusion is that the petition should be dismissed. And it is so ordered.

Moss, Judge; Graham, Judge; and Booth, Judge, concur.  