#### ADOLPH HARTIENS, Tutor, v. THE UNITED STATES.

[Congressional,

10196.

Decided December 3, 1906.]

*On the Proofs.*

*Á*bill for tbe relief of W. H. Osborne, tbe deceased owner of certain captured property, is referred to tbe court by tbe Senate under tbe Tucker Act. The court finds that the claimant was not loyal, but also finds for him on the merits, and, after a motion for a new trial is overruled so reports the case to tbe Senate. Five years after the motion for a new trial was overruled, tbe Senate refers a second bill for the relief of tbe same parties to the court. Tbe claimant contends that this second reference operates to grant him a new trial and to reinvest the court with jurisdiction.

I. After tbe court has complied with the provisions of the Tucker Act and reported its findings to Congress a re-reference of the same claim in another bill for the benefit of the same parties operates to return the findings to tbe court, and tbe court thereby regains control of tbe ease for certain purposes as if tbe findings bad been returned at the request of tbe court.

*43II. After a claim has been re-referred under the Tucker Act, if the court finds that its former findings were based upon false or fraudulent testimony or were procured through the misconduct of the parties, their attorneys, or witnesses, it will proceed to purge improper matter from the record; and where, in consequence of such testimony, the owner of certain property was found not loyal, the court will find that he was loyal if the remaining evidence in the case justifies it in so doing.

III. The rule of *res judicata*extends to cases referred under either the Bowman or the Tucker Act, and where a controverted fact has been established by a finding of the court, and jurisdiction has been lost by the case having been reported to Congress, the fact established can not again be controverted in another action' between the same parties. But where the findings were based upon false or fraudulent testimony, or were procured through the misconduct of- the parties, their attorneys, or witnesses, the court, upon a re-reference of the claim, will reconsider the case and purge away the testimony improperly procured and find the facts upon the testimony as if the improper part had not been admitted in- evidence.

*The Reporter's*statement of the case:

The following are the facts of the case prior to the present trial:

On October 30, 1906, this case came on to be heard under a second reference of the claim by resolution of the United States Senate June 27, 1906, on the question of the loyalty of the claimant’s decedent, William H. Osborne.

On the original reference of the claim by a resolution of the Senate April 25, 1900, the court found the facts, including a finding that the claimant’s decedent was not loyal to the Government of the United States throughout the late civil war, and reported its findings to Congress January 16, 1901.

Under the second reference the claimant shows to the court that the finding of not loyal so reported was based on false testimony, and after purging said finding therefrom the claimant is found to have been loyal throughout said war and the finding in that respect is modified accordingly, as fully explained in the opinion hereto.

*44The original findings, except as modified on loyalty, together with a statement of the case as originally reported, are as follows:

The claim in the above-entitled case for supplies or stores, alleged to have been taken by or furnished to the military forces of the United States for their use during the late war for the suppression of the rebellion, was originally transmitted to the court by the Committee on War Claims, House of Representatives, on the 18th day of April, 1884, on behalf of Bell E. Osborne, executrix of the estate of John Osborne, deceased, who was a partner of William H. Osborne, the claimant in this case; and in said case the court made findings of fact in favor of the estate .of said Jolin Osborne, as set forth in 24 C. Cls. R., 417, 418.

In the case wherein said findings were made no appearance was made on behalf of William H. Osborne, and no allowance was made in his favor, nor was his loyalty passed upon by the court.

Thereafter, to wit, April 25, 1900, a bill, No. 4349, was introduced in the Senate of the United States directing the Secretary of the Treasury to pay to the claimant herein the sum of $54,875, in full of the claim of the said William H. Osborne, deceased, for one-half of the stores and supplies taken for army and.navy use from the said John and William H. Osborne, deceased, during the late war for the suppression of the rebellion, which bill thereafter, to wit, May 2, 1900, by resolution of the United States Senate, was referred to the court Tinder the provisions of the act of March 3, 1887, known as the Tucker Act.

The case was brought to a hearing on the question as to the loyalty of the deceased claimant, William H. Osborne, and also as to the merits of the claim, on the 22d day of May, 1900. P. E. Dye, esq., appeared for the claimant, and the Attorney-General, by Felix Brannigan, esq., his assistant, and under his direction, appeared for the defense and protection of the interests of the United States.

The claimant avers in his petition, among other things, that during the late war for the suppression of the rebellion William H. Osborne and John Osborne, his brother, were residents of Rapides Parish, La., and were the oivners in *45partnership of a large plantation situated about 10 miles below Alexandria, on the Eed Eiver, in said State. The plantation was worked by them in partnership, each having the ownership of one-half of the products thereof. That during the campaign of Gen. N. P. Banks on the Eed Eiver in the spring of 1864 there was taken from their plantation by and for the use of the Army of the United States 1,000 hogsheads of sugar, containing 1,000,000 pounds, worth 9 cents .per pound, or $90,000; 10,000 bushels of corn, 50 head of mules, 14 head of horses, and 100 head of cattle, all of the value of $109,750, for which he, William H. Osborne, claims one-half.

The court, after considering the evidence adduced and the briefs and arguments of counsel on both sides, now makes the following findings of fact:

I. During the war for the suppression of the rebellion William H. Osborne, deceased, the person alleged to have furnished said supplies or stores, or from whom they are alleged to have been taken, was loyal to the Government of the United States.

II. The plantation from which the property was taken is situated 10 miles below Alexandria, La., and was the property of John, and William II. Osborne. It was worked by them in partnership, both before and during the war, up to the time of seizure. The property seized was in bulk on the plantation, and had not been divided between or set off to the respective partners.

III. Between the 5th and 13th May, 1864, the 'military or naval forces of the United States seized and took from the plantation of John and William H. Osborne, 1,000 hogsheads (1,000,000 pounds) of sugar belonging to them as This sugar Avas laden on naval gunboats or army transports on the Eed Eiver. It does not further appear what became of it, *nor whether it was issued to or used as stores or supplies by the Army or Navy;*nor whether it came to the official custody of the chief quartermaster of the Department of the Gulf, in NeAV Orleans, or of the chief commissary of the department; nor whether it was treated as abandoned or captured property and sold, and the proceeds paid into the Treasury.

*46IY. The value of the sugar at the time of capture in the local market of Alexandria has not been shown; but it appears that on the 5th of May, 1864, the commissary department purchased large quantities of sugar in Alexandria at about 9 cents per pound. Private property at that time could not be taken out from the vicinity, for the reason that the evacuation of Alexandria by the military forces of the United States was then taking place, and all of the means of transportation were in the possession and control of the Government.

Y. During the same campaign of General Banks on the Ned River in the spring of 1864 there was taken from the plantation *by and for the use of the Army*property of the kind described in the petition, consisting of corn, mules, horses, and cattle, likewise belonging to the said partnership of John and William H. Osborne, the fair and reasonable value of which at the time and place of seizure was $19,750, one-half of which amount, to wit, $9,875, belonged to the claimant’s decedent, William H. Osborne.

VI. No reason is shown why the claim in this case was not prosecuted before the commissioners of claims, or in this court while pending under reference of act of March 3, 1883, other than the death of claimant’s decedent, which occurred on the 2d day of December, 1865, leaving his widow, Mary L. A. Duvol Osborne, and their daughter and only child, Mary Corinne Osborne, then less than 1 j^ear of age.

VII. In 1868 said Mary L. A. Duvol Osborne intermarried with one Plenry IT. Rogers, and thereafter in 1872 she died without issue by said second marriage.

December 1, 1887, said Mary Corinne Osborne intermarried with Adolph Hartiens, and on February 8, 1892, she died leaving three minor children, to wit, Sidney L., William W., and Mary R. Hartiens, grandchildren of said William Osborne, deceased.

*Mr. Raleigh Sherman*for -the claimant. *Mr. P. E. Dye*was on the brief.

*Mr. Felix Brannigan*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

*47Peelle, Ch. J.,

delivered tbe opinion of the court:

The claim in this case is for stores and supplies alleged to have been taken from the plantation of John and William H. Osborne, near Alexandria, La., in May, 1864, .by the military forces of the United States.

The claim of John Osborne for his one-half of the property so taken was presented to the Commissioners of Claims, who rejected the same because prior thereto the claimant had gone into bankruptcy. Thereafter the claim was referred to this court by the Committee on War Claims of the House of Representatives under the act of March 3, 1883, known as the Bowman Act; and the claimant having been found loyal, findings were made on the merits and certified to Congress, and the amount therein allowed has since been appropriated for and paid.

The claim of William H. Osborne was not presented to the Commissioners of Claims, he having died in December, 1865 (before the creation of the Commissioners of Claims), leaving surviving him his widow and one child, then less than 1 year old. The widow subsequently intermarried with Henry H. Rogers and in 1872 died.

The claim not having been presented to the Commissioners of Claims by the widow, or by anyone representing her estate or the estate of said minor child, was for that reason barred by section 4 of the’ act of March 3, 1871, creating the Commissioners of Claims (16 .Stats. L., 525), as well as by section 3 of the Bowman Act.

The first bill (Senate, 4349), first session Fifty-sixth Congress, for the relief of William H. Osborne for his one-half of the property so taken was referred to the court by resolution of the United States Senate May 2, 1900, under section 14 of the act of March 3, 1887, known as the Tucker Act.

The provision of that section authorizing the court to find “ any facts bearing upon the question whether the bar of any statute of limitation should be removed or which shall be claimed to excuse the claimant for not having resorted to any established legal remedy,” would seem to imply that claims otherwise barred might be referred to the *48court under that section. Such being the view of the court with respect to claims of this character, the court entertained the claim.

The claimant as tutor, under the laws of Louisiana for the minor heirs of said William H. Osborne, filed his petition setting forth the facts, and the case was docketed as No. 10196 Congressional.

Findings were made in the case and reported to Congress, including a finding that the claimant’s decedent, William H. Osborne, through whom the claim was made and from whom the stores and supplies were alleged to have been taken, was not loyal to' the Government of the United States throughout the war for the suppression of the rebellion. But as loyalty is not jurisdictional under the Tucker Act, as it is under the Bowman Act, the court found the facts on the merits of the claim.

Thereafter the claimant filed his motion for a new trial on loyalty with affidavits in support thereof, which was argued and submitted January 7, 1901; and on January 12, 1901, said motion was overruled and the findings as then amended and filed were, on January 16, 1901, on motion of the claimant’s attorney, certified to Congress. The foregoing findings are identical with those so certified except on the question of the loyalty of said William H. Osborne.

Thereafter, by resolution of. the United States Senate, bill 5615, first session Fifty-ninth Congress, then pending in the Senate, providing for an appropriation to pay said claim, was, on June 27, 1906 — more than five years after the overruling of the motion for a new trial — again referred to the court for examination and report under said act of March 3, 1887.-

The claimant’s contention is that the second reference of the claim operates to grant him a new trial and to reinvest the court with jurisdiction and power to again examine and adjudicate the claim.

When the court had complied with the act under which the claim was referred, and reported its findings to Congress, as it did, its jurisdiction was thereby exhausted; and being exhausted, it was not within the power of one branch of Con*49gress, by the second reference of the same claim under the same act, to again clothe the court with jurisdiction to rein-vestigate or reconsider the claim. But while this is true, such rereference, the court holds, operates to return the findings of fact.

The court, by the return of the findings of fact, having thereby regained control of the case, will determine what further steps may be taken. That is to say, if such findings are in any respect based upon false or fraudulent testimony or were procured through the misconduct of any of the parties to the case, their attorneys or witnesses, the court will inquire in respect thereto until the findings so returned are purged therefrom.

The claimant contends, and the evidence seems to satisfy his contention, that the unfavorable finding on the question of loyalty of his decedent, William H. Osborne, was necessarily based on the testimony of one Dennis Kelly, as the testimony of all the other witnesses in the case was favorable to the loyalty of said decedent.

The witness, Kelly, in his first deposition, taken at Alexandria, La., in behalf of the defendants in 1890, testified in substance that said Osborne was by profession a civil engineer; that in 1863, a short time before the raid of the Federal Army under General Banks, said Osborne was employed as engineer superintending the construction of rafts in the Bed Biver at Fort De Boussey, about 30 miles below Alexandria, La., and that he had a foreman under him; that they were at the time expecting a vessel of the United States up the river known as the *Queen of the West,*and that the rafts were being constructed to prevent the vessels of the United States from coming up the river.

In the deposition of said Kelly, taken in Washington, D. C., in March, 1906, it appears that a few months prior thereto his attention was called to his former testimony by the claimant’s local attorney, and he disclaimed having testified as above indicated, saying that such former testimony was false; that said William H. Osborne was loyal to-the Government of the United States throughout the war for the suppression of the rebellion; that he so acted and expressed *50himself, and was so regarded by his neighbors and friends; that he was arrested by the Confederate forces and compelled to do what he did; that he saw him under arrest, and, further, that he was not engaged as superintendent or otherwise at Fort De Eoussey in constructing rafts. He further testifies in detail favorably to the loyalty of said Osborne, and says that he came to Washington at the claimant’s expense to correct his former testimony.

In explanation of why he had so testified on his first examination, he says he was at the time intoxicated; and the claimant’s local attorney, Mr. H. L. Daigree, who cross-examined said Kelly, says under oath:

When I cross-examined Mr. Kelly in this matter in Alexandria, La., I was forced to ask him very few questions, because during that examination I discovered that he was quite intoxicated. Therefore I ceased to further examine him.”

Aside from the presumption of disloyalty to the United States arising from the residence of said William H. Os- . borne in an insurrectionary State, the finding adverse to his loyalty was based on the testimony of Dennis Kelly, and if the testimony of Kelly is eliminated from the case, the claimant is entitled to have the findings on loyalty modified.

In the *Le More case*(35 C. Cls. R., 9), wherein a judgment had been rendered against the claimant in the district court for the Southern District of Illinois, and on appeal to the Supreme Court had been affirmed, and the claim thus adjudicated was referred to this court under the Tucker Act, the doctrine of *res judicata*was held applicable, the court saying:

*“*Certainly the Congress, by the language of the section of the act under which the reference was made, did not intend that the court, in the ascertainment of the facts for their information, should be governed by any other rules of evidence than those applicable to cases coming under our general jurisdiction; and if that be true, then it follows that the best evidence of the citizenship and residence of Quey-rous, through whom the claimants assert title to the cotton, must be found in the case thus determined, which has become *res judicata.*

*51“ The rule is elementary that where a controverted fact has been judicially established upon the evidence by a court of competent jurisdiction such fact so established can not be again controverted in any other action of a not higher nature between the same parties. *(>Spicer’s case,*5 C. Cls. R., 34, and authorities there cited.)

sis * * * *

“ For the reasons stated we must hold that the doctrine of *res judicata*is applicable to cases referred to the court under the act March 3, 1887, or the Bowman Act, for the reason, among others, that the court in the ascertainment of the facts in cases so referred is governed by the well-established elementary rules of the law of evidence, and being so governed the facts in such cases can- be found only by judicial means and methods.”

Later in the same case (39 C. Cls. R., 484), while that ruling was adhered to, the court said:

“ We do not believe it was the purpose of Congress by section 14 of the act of March 3, 1887 (supra), that where cases had been adjudicated and become *res judicata*they should again be the subject of judicial investigation by this court under that act, unless it should be clearly shown that there was such mistake in the judicial proceedings as if known to the court at the time would have affected its judgment.”

That being the rule with reference to cases which have been determined to judgment, there is no reason why the same rule should not apply in cases referred under the Tucker Act, where the court, in the exercise of judicial power in a judicial way, finds the facts for.Congress; and applying that rule to the facts in this case, respecting the loyalty of the claimant’s decedent, it is manifest from the evidence originally presented that but for the false testimony of Dennis Kelly this court would not have found adversely to the loyalty of William H. Osborne during the late civil war. In other words, if the testimony of Kelly had not been offered in evidence in the case when it was first tried, or if the present testimony of Kelly had been before the court at that time, the ruling of the court would have been different on the 'question of loyalty. Therefore, the court reaches the conclusion that the finding in respect to loyalty was based on false and misleading testimony, and, being so based, the findings in that respect must be purged therefrom, which is *52accordingly ordered, and excluding the testimony of Kelly said William H. Osborne is found to have been loyal to the United States throughout the war for the suppression of the rebellion. ,

The former findings as thus modified in respect to loyalty, together with this opinion, will again be certified to Congress under the original reference as case No. 10196.