
    GEORGE M. LEAHY, RECEIVER, v. THE UNITED STATES.
    [No. 10550, Congressional.
    Decided March 12, 1906.]
    
      On the defendants'1 Motion.
    
    This'is a«case referred by the Senate under the Tucker Act. The bill purports to be for a claim for the..use and occupation of real estate in the city of New Orleans by the military forces in May, 1862. It provides that the claim “be referred to the Court of Claims for adjudication under the provisions of section 1J¡ of the Tucker Act.”
    
    I. A bill setting forth the claim for the use and occupation of real estate in New Orleans and referring the claim to the Court of Claims for adjudication under the provisions of the Tucker Act, § 14, is equivalent to a bill' “for the payment of a claim against the United States, legal or equitable.”
    
    
      II. If from the language of the bill referred the court can determine that a claim exists against the United States, legal or equitable, which Congress desire the court to investigate to aid them in determining whether such claim should be paid, the court can take Jurisdiction though the bill does not in 'express terms provide for the payment of the claim.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney-General Van Orsdel) for the motion.
    
      Mr. John W. Butterfield in opposition.
   Peelle, Ch. J.,

delivered the opinion of the court:

The defendants move to dismiss the case for want of jurisdiction, on the ground that the bill referred by the resolution of the United States Senate under section 14 of the act of March 3, 1887, is not a bill providing “ for the payment of a claim against the United States, legal or equitable,” and in support of their motion they rety on the case of Bellah (39 C. Cls. R., 396).

In that case the bill referred was one authorizing and directing the Secretary of War to cause to be investigated by the Quartermaster’s Department of the United States Army the alleged taking and use by the United States Army during the late civil war of certain personal property in the State of Georgia. The bill provided that “ when such investigation ivas completed, the Secretary of War shall report the result thereof with his recommendation thereon to Congress for action in the premises.”

The bill in that case may have been referred to the court by the oversight of some one. At all events, the court held that it was not such a bill as was contemplated might be referred by the statute, and refused to take j urisdiction.

But such is not the character of the bill referred in the present case. Here the bill purports to be a claim for the use and occupation of real estate in the city of New Orleans by the military forces of the United States from May, 1862, to the year 1866. The bill provides that the claim “be referred to the Court of Claims for adjudication under the provisions of section fourteen of the act of March third, eighteen hundred and eighty-seven.” The court is, of course, without jurisdiction to adjudicate the claim to judgment, but the question is, May not the court. discharge the lesser judicial function — that is to say, may it not find the facts respecting the claim in accordance with the provisions of section 14 of the act under which the reference was made ?

The court will not undertake to prescribe for Congress a rule of pleading, or any particular form of language requisite for them to use in bills they may see fit to refer to the court.

If from the language of the bill referred the court can determine that a claim exists against the United States, legal or equitable, which Congress desires the court to investigate, to aid them in determining whether such claim should be paid, then the court will take jurisdiction and find the facts, even though the bill referred, as in the present case, does not in express terms provide “ for the payment- of a claim against the United States.”

The motion is overruled.

Howry, J.,

dissenting :

Broad as the jurisdiction of the court is, the authority to proceed is wanting, because the bill does not provide for the payment either of a claim or for a grant, gift, or bounty. This requirement is the plain-language of the statute. The court can not legislate into the bill the thing necessary to the reference. When the court finds the facts and reports, Congress will not have the findings in such a case as the court has had a right to deal with, but the matter of jurisdiction may be overlooked, or Congress may intentionally ignore the power of the court in the premises and appropriate anyhow. This, the Congress can readily do; but when it does, such report as we make can not be the proper foundation for an appropriation.

Jurisdiction under the fourteenth section of the act of March 3, 1887 (24 Stats., 507), is the power conferred upon this court exclusively to hear and consider any bill pending in either House of Congress, except for a pension, providing for the payment of a claim against the United States, legal or equitable, or for a grant, gift, or bounty to any person upon the reference of such bill by resolution where the same is pending; then to report to Congress, not the evidence pertaining to the matter, but the ultimate facts arising out of the competent evidence in the case. This report is to include the amount where the same can be liquidated. The court might possibly waive the direction to “ adjudicate ” the claim (although “ to adjudicate ” is to pronounce judgment, which under the fourteenth section of the Tucker Act we have no authority to do) and find and report the facts, because by inference we know what is desired and what was intended. This, though loose practice, may not be vital. But the bill referred .does not purport on its face to be a claim against the United States; it does not purport to provide for the payment of anything to the supposed beneficiary; it does not purport to appropriate by way of grant, gift, or bounty. Legislation not being the function of the court, there is no authority to consider a petition which has not had the sanction of one of the legislative bodies of Congress by a bill disclosing the amount claimed and providing for its payment.

Objections to jurisdiction are not technical when the court is compelled to supply material omissions. That is the situation here. Jurisdiction can not be inferred argumentatively or holpen out by evidence extrinsic to the record. (Brown v. Keene, 8 Peters, 112.)

In Bellah’s case (supra), jurisdiction was not taken under the resolution which brought the case here because no beneficiary was named. The unintentional mistake there which the court now suggests may have been an oversight was deemed sufficient reason under the law not to proceed. Plere, where the mistake is assumed by the court to be intended, it is held to be an immaterial mistake. The'oversight to me is as apparent in the one case as in the other.

The court does not undertake to prescribe for Congress in refusing jurisdiction a rule of pleading nor any particular form of language in bills referred to the court under the fourteenth section of the act of 1887. The Congress have prescribed the rule, which neither House can disregard without consulting the other and together changing the law.  