
    JOSEPH E. HOUSTON, ADMINISTRATOR OF JAMES MOORE, DECEASED, v. THE UNITED STATES.
    [No. 30895.
    Decided February 9, 1914.]
    
      Jurisdiction.
    
    An allegation that tbe owner of cotton taken under the captured or abandoned property act was pardoned for any aid to rebellion during the Civil War is a compliance with section 159 of the Judicial Code requiring an allegation of continuous loyalty, following Lincoln, Adwvr., v. The United States.
    
    
      The Reporter's statement of the case.
    The averments of the petition are sufficiently stated in the opinion of the court.
    
      Mr. W. F. Norris, with whom was Mr. Assistant Attorney General Huston Thompson, for the motion.
    Section 159 of the Judicial Code requires the claimant in all cases to fully set forth in his petition his loyalty, and where the claim has been assigned that of his decedent, to the United States Government in the following language:
    “The claimant shall in all cases fully set forth in his petition * * * that the claimant, and where the claim has been assigned the original and every prior owner thereof, if a citizen, has at all times borne true allegiance to the Government of the United States, and, whether a citizen or not, has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government.”
    Section 160 of the Judicial Code provides:
    “The said allegations as to true allegiance and voluntary aiding, abetting, or giving encouragement to rebellion against the Government may be traversed, by the Government, and if on the trial such issues shall be decided against the claimant, his petition shall be dismissed.”
    By the provisions of the foregoing sections claimants are required in all cases to set forth their own loyalty, and where the claim has been assigned that of their decedent, and if such averment be traversed by the Government and loyalty not proven on the issues thus raised, the petition shall be dismissed. This court has passed upon a.case similar to this and identical in principle, sustaining the motion to dismiss the petition for the reason that it contained no allegation of claimant’s loyalty. See Brockett’s case, 2 C. Cls., 214. The claim was for rent under the provisions of the abandoned and captured property act. The petition failed to set forth the loyalty of claimant as required by the statute and was dismissed by the court in the following brief opinion, per curiam:
    “There is no averment of loyalty in this petition, as the statute requires. It is essential there should be, as the solicitor has the right to travorse it, and he can not traverse what is not averred. The petition is therefore dismissed.”
    The motion to dismiss the petition in the aforesaid case was made under the requirements of the twelfth section of the act of Congress approved March 3, 1863, the provisions of which were substantially the same as 159 of the Judicial Code.
    The language of section 162 of the Judicial Code is as follows:
    “Sec. 162. That the Court of Claims shall have jurisdiction to hear and determine the claims of those whose property was taken subsequent to June the first, 1865, under the provisions. of the act of Congress approved March twelfth, 1863, entitled ‘An act to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States,’ and acts amendatory thereof, where the property so taken was sold and the net proceeds thereof were placed in the Treasury of the United States; and the Secretary of the Treasury shall return said net proceeds to the owners thereof on the judgment of said court, and full jurisdiction is given to said court to adjudge said claims, any statute of limitations to the contrary notwithstanding.”
    The act of March 12, 1863, mentioned in section 162 of the Judicial Code, known as the abandoned and captured property act, contains the following provision:
    “And any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims; and on proof to the satisfaction of said court of his ownership of said property, of his right to the proceeds thereof, and that he has never given any aid or comfort to the present rebellion, to receive the residue of such proceeds, after the deduction of any purchase money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof.”
    Sec. 162 gives the Court of Claims jurisdiction over claims under the abandoned and captured property act where the property was taken subsequent to June 1st, 1862, and removes the bar of the statute of limitations.
    The petition in the case at bar does not comply with the requirements of section 159 of the Judicial Code or the abandoned and captured property act in setting forth that claimant, or his decedent, has at all times been loyal to the United States and never been disloyal to said Government. The statement that "the claimant and said decedent have at all times borne true allegiance to the Government of the United States and have not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government, that is to say if any such acts were committed during the late Civil War between the years 1861 and 1866, a full pardon has been granted therefor by the President of the United States” does not constitute an averment of the loyalty of claimant and his decedent, as required by section 159 of the Civil Code.
    Claimant virtually confesses that he and his decedent were disloyal to the United States and seeks to avoid the consequence of such disloyalty by pleading pardon by the President of the United States. That the pardon of the President does not enable a disloyal claimant, or a claimant who has been disloyal, to recover his j>roperty that has been conficsated by the Government or taken under the provisions of the abandoned and captured property act and sold, and the proceeds thereof placed in the United States Treasury, has been decided by this court and the Supreme Court of the United States in Knote’s case, 95 U. S.,' 149, where the court held that the general pardon granted by the President did not entitle claimant to the proceeds of his property confiscated by the Government and condemned and sold, after the proceeds had been paid into the Treasury. See syllabus of said case, as follows:
    “The general pardon and amnesty granted by President Johnson, by proclamation, on the 25tn of December, 1868, do not entitle one receiving their benefits to the proceeds of his property previously condemned and sold under the confiscation act of July 17, 1862, 12 Stat., 589, after such proceeds have been paid into the Treasury of the United States.”
    In Eaycraft’s case, 112 U. S., 81, the court holds that a person who gave aid and comfort to the rebellion and who had not been pardoned until after two years from the suppression of the rebellion, can not, on his preferring his petition, recover the proceeds of the sale of his cotton under the provisions of the abandoned and captured property act. The doctrine as enunciated by this court and the Supreme Court is that a disloyal claimant, or a claimant who has been disloyal to the Government, can not recover for the proceeds of property taken under the captured and abandoned property act who had not applied for pardon within two years as prescribed by that act.
    In Brockett’s case, 2 C. Cls., 214, above referred to, the petitioner alleged that he had taken the oath of amnesty prescribed' by the President’s proclamation. The court ignored claimant’s plea of pardon in its brief opinion, in dismissing the case.
    
      Mr. 'William B. King, Mr. John 8, Blair, and Mr. Benja-man Miaou opposed. Messrs. King & King, Mr. 8. P. Knutt, Messrs. Herbert da Miaou, and Messrs. Maddox c& G-atley were on the briefs.
    Claimants’ briefs rely upon numerous decisions of the Supreme Court under the Captured and Abandoned Property act of March 12, 1863, sec. 3, 12 Stat. L., 820, declaring that after the pardon it was unnecessary to prove adherence to the United States during the Civil War. These cases are Exparte Garland, 4 Wall., 333; Armstrong’s Foundry, 6 Wall., 766; United States v. Padelford, 9 Wall., 531; United States v. Klein, 13 Wall., 128; Armstrong v. United States, 13 Wall., 154; Pargoud v. United States, 13 Wall., 156; Carlisle y. United States, 16 Wall., 147; Osborn y. United States, 91 U. S., 474; White y. United States, 19 C. Cls., 436;
    In Carlisle y. United States, 16 Wall., 147, the Supreme Court said, p. 153:
    "After these repeated adjudications, it must be regarded as settled in this court that the pardon of the President, whether granted by special letters or by general proclamation, relieves claimants of the proceeds of captured and abandoned property from the consequences of participation in the rebellion, and from the necessity of establishing their loyalty in order to prosecute their claims. This result follows whether we regard the pardon as effacing the offence, blotting it out, in the language of the cases, as though it had never existed, or regard persons pardoned as excepted from the general language of the act, which requires claimants to make proof of their adhesion, during the rebellion, to the United States.”
    This case was expressly cited in Osborn v. United States, 91 U. S., 474. A decree of condemnation under the Confiscation Act had been entered by the District Court of Kansas against the property of a defendant taking part in the rebellion and the proceeds of the sale were in the possession of the court, when the defendant, being pardoned, applied for payment of the proceeds to him. The court said:
    “The pardon, in releasing the offence, obliterating it in legal contemplation, Carlisle v. United States, 16 Wall., 151, removes the ground of the forfeiture upon which the decree rests, and the source of title is then gone.”
    In Young v. United States, 97 U. S., 39, a cotton claim, the Supreme Court again recognized the authority of this rule, saying, p. 68:
    “We have decided that the pardon closes the eyes of the courts to the offending acts, or, perhaps more properly, furnishes conclusive evidence that they never existed as against the Government.”
    Therefore also in this court “it must be regarded as settled” that pardon relieves claimants for captured and abandoned property from alleging antecedent loyalty under either section 12 of the act of March 3,1863, 12 Stat. L., 767, or section 3 of the act of March 12, 1863, 12 Stat. L., 820.
    Such was the uniform practice. No question was ever raised in regard to it until these motions. This is shown in White v. United States, 19 C. Cls., 440:
    “Since the decisions of the Supreme Court in the Armstrong and Pargoud cases, already cited, this court has not required claimants to aver and prove their loyalty, although the language of the Revised Statutes is that they shall set out in their petition that they have at all times borne true faith and allegiance to the United States, and have not given aid and comfort to rebellion in general, while the loyalty to be proved under the captured or abandoned property act to which those decisions referred, and the disloyalty pardoned by the proclamation of general amnesty, related to the late rebellion only.
    “The reason that claimants are thus relieved from the requirement of the Revised Statutes as to proof of loyalty is that it is understood that the word rebellion as there used practically, so far as the past is concerned and until something happens, if ever, to which it may apply again, must refer to the late rebellion only; and for disloyalty in that rebellion all citizens have been pardoned, and their disabilities to sue in this court are thereby removed.”
    Section 12 of the act of March 3, 1863, is expressly reenacted in section 159 of the Judicial Code; that of March 12, 1863, is impliedly reenacted in section 162. The effect of the reenactment is distinctly declared in McDonald v. Hovey, 110 U. S., 619, cited in the Reiehman brief, p. 11, as follows, p. 629:
    “So, upon a revision of statutes, a different interpretation is not to be given to them without some substantial change of phraseology — some change other than what may have been necessary to abbreviate the form of the law.
    * * * *
    “So the Supreme Court of Alabama has held that the legislature of that State in adopting the code, must be presumed to have known the judicial construction which had been placed on the former statutes; and therefore, the reenactment in the code of provisions substantially the same as those contained in a former statute is a legislative adoption of their known judicial constructions. Duramus v. Harrison, 26 Ala., 326.”
    
      This doctrine bas been repeatedly declared by tbe Supreme Court of tbe United States.
    In PennocJc v. Dialogue, 2 Pet., 1, Justice Story says, p. 18:
    "It is doubtless true, as bas been suggested at tbe bar, tbat where English statutes, such for instance as tbe statute of frauds and tbe statute of Hmitations, have been adopted into our own legislation tbe known and settled construction of those statutes by courts of law bas been considered as silently incorporated into tbe acts or bas been received with all tbe weight of authority.”
    In The Abbotsford, 98 U. S., 444, tbe court said:
    "From this it is apparent tbat when tbe act of 1875 was passed words in a statute limiting tbe power of this court in tbe review of cases where tbe facts bad been found below ' to a determination of tbe questions of law arising upon tbe record and to tbe rulings of tbe court excepted to’ bad acquired, through judicial interpretation, a well-understood legislative meaning, and tbat they confined our jurisdiction to tbe reexamination of questions of law alone. Having tbat meaning, therefore, it is to be presumed they were used in tbat sense in this instance unless tbe contrary is in some way made to appear.”
    In United States v. Mooney, 116 U. S., 104, tbe following very pertinent language is used, p. 106:
    “It is not to be supposed tbat Congress, in using in tbe act of 1875 tbe same language, so far as tbe present question is concerned, as tbat employed in the act of 1789 intended to give it a meaning different from tbat put upon it by this court and which bad remained unchallenged for three-quarters of a century.”
    Tbe rule of tbe exclusive remedy, announced in tbe Hay-craft case, is followed in tbe cases cited in tbe Government’s brief, Young v. United States, 97 U. S., 58, cited, p. 27; Ford v. United States, 19 C. Cls., 524, cited, p. 29; Webb v. United States, 20 C. Cls., 499, cited, p. 30; and Brandon v. United States, 46 C. Cls., 560, cited, p. 31. These cases have nothing to do with pardon.
   Howrt, Judge,

delivered the opinion of the court:

This is one of the class cases arising under section 162 of tbe Judicial Code. That section revives in part tbe act of March 12, 1863, commonly known as tbe abandoned or captured property act and the acts amendatory thereof, where property was taken and sold and the net proceeds placed in the Treasury. Defendants have moved the court to dismiss for the reason that the petition does not set forth the loyalty of claimant or of his decedent, as required by sections 159 and 162 of the Judicial Code.

After the filing of the motion by defendants to dismiss, a second amended petition was filed by the claimant administrator in which it is alleged without qualification that he, the said administrator, has at all times borne true allegiance to the Government of the United States. The allegation as to the loyalty of the decedent is left in in the form first stated where appears the statement that the decedent during his lifetime bore true allegiance to the Government of the United States; that is to say, if any acts of voluntary aid or encouragement to rebellion against the Government were committed during the late Civil War between the years 1861 and 1866 a full pardon was granted therefore by the President of the United States.

The questions involved in this motion have been largely treated, in the opinion of the court, contemporaneous herewith in the case of Cicero L. Lincoln, administrator of Joseph A. Harvey, deceased, v. The United States. There is a difference in the pleading presented by the two cases. In Lincoln’s case it was alleged that the decedent at all times bore true allegiance to the Government of the United States, followed by an allegation of the loyalty of the claimant administrator and under a second amendment further followed by the statement substantially that for any act, either aiding or abetting rebellion against the Government, including service in the Confederate Army, the claimant had been granted a full pardon by the President of the United States. In the case we are now considering the allegation is without qualification that the claimant has at all times borne true allegiance to the Government of the United States. But, as to the decedent, the recital as to his loyalty is followed by the statement that if any such acts were committed by him in voluntarily extending aid or encouraging rebellion such acts “were committed during the late Civil War and full pardon has been granted.”

Taking tbe motion to dismiss as applicable under the second amended petition to the decedent’s loyalty, the parties have endeavored to make the case present for decision the question only whether in a claim for cotton in this court, under section 162 of the code, the allegation and proof of a pardon to the original owner is equivalent to that of continued loyalty.

Section 159 of the Judicial Code, which defendents have set forth in their motion to dismiss, in connection with section 162 of the same code, is inapplicable if we should follow the decision of the court in the case of White, Exec., v. United States, 19 C. Cls. R., 436. That decision declared that section 1072 of the Revised Statutes related only to claimants of record, and not the decedents, whose rights are represented in the court through executors or administrators. In White’s case it was said that:

“ Claimants of record, in whatever capacity they bring their action, are the only claimants recognized by the court, and it is to them alone, in our opinion, that the existing statute as to proof of loyalty applies.”

The “ existing statute ” at the time that decision was rendered now appears as section 159 of the Judicial Code, being section 1072 of the Revised Statutes. The court’s decision was based upon the ruling of the appellate court in Carroll's case, 13 Wall., 151, where it was said that an administratrix was the “ owner ” of the property taken within the sense of the statute and that as to her the provision requiring the proof of loyalty applied.

But the “ owner ” mentioned in Carroll’s case was an administratrix in possession of the property at the time of capture. Here the court is not informed by the pleadings who was in possession of the property. This decision of the appellate court was upheld later in the case of Villalonga, 23 Wall., 35, by the statement that a person in possession of the property at the time of capture — lawfully entitled to possession — must be deemed the owner and entitled to recover the proceeds within the meaning of the captured or abandoned property act.

It is disclosed in the amended petition that there were taken 240 bales of cotton from the decedent. This allegation is followed by the statement that the decedent “ had at all times borne true allegiance to the Government of the United States,” and had not in any way voluntarily aided, abetted, or given encouragement against said Government. The subsequent language of the petition is the matter of the pardon.

As the pleadings stand, the petition states a cause of action. What the proof may develop and what questions may be raised from the proof must be left open for consideration hereafter.

The motion to dismiss the cause is denied.  