#### BENJAMIN M. PURSSELL v. THE UNITED STATES.

[No. 30298.

Decided May 29, 1911.]

*On the Proofs.*

A paymaster in the Army on duty in San Francisco, in 1906, is granted leave of absence. Before leaving be packs all bis military equipments, clotbing, camp outfit, and other personal property required for use in the service in chests and leaves them in bis office in charge of bis clerk. On the 18th April, 1906, this property is wholly destroyed by earthquake and fire. The Secretary of War certifies that the property lost was necessary and proper for the officer to have in quarters, but the claim is disallowed by the accounting officers on the ground that the officer, being absent on leave, was not entitled to the benefit of the statute.

I.The *Aet SO, March, 1885*(23 Stat. L., p. 350), directs the accounting officers of the Treasury to *“exánime into, ascertain, and determine the value of the private property belonging to officers and enlisted 'men which may hereafter be lost or destroyed in military service.”*This provision does not confer exclusive jurisdiction on the accounting officers of the Treasury.

II.The statute also provides *“That the relief granted by the provisions of this act shall, be in full satisfaction of any and all claims whatever against the United States.”*The meaning of this provision is, that the acceptance by the claimant of the amount allowed by the accounting officers will operate as a satisfaction of the claim. The difference of this case from that of Little (41 O. Ols. R., 408) pointed out.

III.The absence of an officer properly on leave at the time of the loss of his military property will not exclude him from the relief given by the statute if the loss or destruction was without fault of negligence on his part.

IT. Negligence can not be attributed to a military officer in a case under this statute while absent on leave if the loss and destruction of property were not caused by theft or insecurity of packing and storage, but were caused by the calamity of earthquake and fire.

Y. The liability of the Government is “ *limited to such articles of personal property as the Secretary of War in Ms discretion shall decide to be reasonable, useful, necessary, and proper for such officer or soldier while in quarters.”*The words “ *while in quarters*” are a limitation on the articles for which the officer is entitled to recover, and do not mean that the officer himself must be present in quarters at the time of the loss.

*510
      *The Reporter’s*statement of tbe case:

Tbe following are tbe facts of tbe case as found by the court:

• I. During tbe time hereinafter mentioned claimant was a captain in the United States Army, detailed for duty as paymaster.

Prior to March 31, 1906, be bad been, under orders, on duty at the headquarters of the Department of the Pacific as paymaster, and had been assigned as office a room in the Phelan Building, San Francisco, Cal., where said headquarter's were located. Said building was a six-story steel and brick building.

On March 31, 1906, claimant was granted four months’ leave of absence, which did not, however, detach him from the headquarters of the Department of the Pacific, or change his station.

To enjoy said leave, on that date he proceeded to New Bedford, Mass., where he was on April 18-21, 1906, at the time of the earthquake and fire in San Francisco hereinafter referred to.

While on said leave, claimant’s office was in charge of his clerk, Paymaster’s Clerk Horace Gr. Pice, United States Army, who from time to time sent claimant matters requiring his personal action and signature.

II. Before leaving San Francisco claimant packed his military uniforms, his horse equipments and clothing, his camp outfit and all his personal property required for use in the military service in three large chests and left them in his office room in the Phelan Building in charge of the military authorities and in care of his paymaster’s clerk, Horace G. Pice. On April 18, 1906, the Phelan Building with its entire contents, including' the military property of claimant, was wholly destroyed by an earthquake .and fire, and it was impossible to save or recover any of said property. In consequence of said earthquake and fire, claimant lost the articles of military uniform, clothing, and equipment listed and described in the following schedule, in which the original cost, the true value at the time of loss, the length of time *511in an use, and the true condition are stated opposite each, icle, viz:



Che total value of the claimant’s property destroyed in fire and earthquake aforesaid was $466.15.

*512No part of the property cmild have beén saved if claimant had been in San Francisco himself at the time o'f said fire. Efforts were made by his clerk and others to save first the public property in said building, but only a part of the more valuable records were saved.

III. Claimant’s property above enumerated was reasonable, useful, necessary, and proper for an officer in quarters engaged in the public service in the line of duty, and the Secretary of War has so certified, and was destroyed in the military service without fault or negligence on the part of' the claimant.

IV. Claimant’s property above enumerated was insured against fire in the Army Cooperative Fire Association. Claimant made claim to said association for total loss, but owing to a clause in the constitution of the association, that no more than $10,000 shall be paid on account of loss in a single fire, claimant was paid only $87.48 by said association, the claims of all policy holders in said association who lost property in the same fire being reduced pro rata to bring the total loss of said association down to $10,000. In consequence of the aforesaid, said association is not legally liable further. Claimant’s net loss is therefore $466.15 less $87.48, or $378.67.

Y. This claim was presented to the Auditor for the War Department on April 24, 1907, within two years from the date of the loss.

*Mr. William B. King*and *Mr. Archibald King*for the claimant. *Messrs. King <& King*were on the brief.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

It will be observed that in the above act the accounting officers of the Treasury have been given exclusive jurisdiction to determine any questions concerning the loss of property belonging to officers and enlisted men in the military service of the United States in time of peace, because it provides that the amount of such loss *so ascertained and determined*shall be paid out of any money in the Treasury not otherwise appropriated and shall be *in full*for all such *513loss or damage, clearly indicating that the accounting officers alone should determine the amount. The act further provides—

“That any claim which shall be presented and acted on under authority of this act shall be held *as finally determined.,*and shall never thereafter *be reopened or consid*ered^”

language which clearly bars this court from reopening the claim or reviewing the action of the accounting officers. The act further provides—

“ That the liability of the Government under this act shall be limited to such articles of personal property as the Secretary of War, *in Ms*discretion, shall decide to be reasonable, useful, necessary, and proper for such officer or soldier *wMle in quarters engaged*in public service in the line of duty.”

In accordance with this last provision, it is manifest that if the court should take jurisdiction of this claim it must be bound by the determination of the Secretary of War in deciding whether the property for which claim is made was “reasonable, useful, necessary, and proper for such officer or soldier while in quarters engaged in the public service in the line of duty,” which would result in a division of jurisdictions inconsistent with the functions of this court. The act in fact clearly indicates that the accounting officers of the Treasury, after preliminary action by the Secretary of War, shall be the exclusive and final judges of the justice and legality of this and other like claims.

This act differs materially from section 236, Eevised Statutes, conferring general authority upon the accounting officers of the Treasury.

The act of 1885 confers special jurisdiction upon the accounting officers of the Treasury, and from their decision there can be no appeal to this court. This court in deciding the case of *Byrd*v. *United States*(44 C. Cls. K.., 498) did not appear to have any serious doubt of the exclusive authority of the Secretary of the Interior under a similar act.

*514Judge Taft, now President Taft, with whom sat Circuit Judge Lurton, now Justice of the Supreme Court, and District Judge Clark, in construing section 2984 of the Revised Statutes in the case of *Ferry da Go',*v. *United States*(85 Fed. Rep., 556, 557), which authorized the Secretary of the Treasury, upon satisfactory proof, to pass upon claims for the destruction of imported merchandise while in the custody of the customs officers, held that the decision of the Secretary was final and conclusive and that the courts had no authority to review his action.

This court, in the case of *Sybrandt et al.*v. *United States*(19 C. Cls., 461), in construing section 3220 of the Revised Statutes, said:

“ It might possibly have been safer to have authorized the Secretary or the accounting officers to review the commissioner’s decision and allow claims which he had rejected and reject claims which he had allowed, but that was a matter for Congress, and they have provided otherwise. The law as it is, however, has been in operation many years, and as yet no report of maladministration has reached the ears of the public.”

In that case the Secretary of the Treasury sought to review, by reference to the accounting officers, the decision of the commissioner, which had been in favor of the claimant. The court held that it had jurisdiction of this claim on the principle laid down in the *Kaufman case*(96 U. S., 567).

This court, in the case of *Marshall*v. *United States*(21 C. Cls., 307-310), where a similar statute was construed, held that the Secretary of War had exclusive jurisdiction. The statute there construed was section 2 of the act of February 28,1867 (14 Stat., 417).

The court held, in arriving at its conclusion, that the six-year limitation of section 1069, Revised Statutes, was applicable to claims presented under the act, and also that where the decision of the Secretary of War had been adverse to the claimants the court was without jurisdiction; but where the decision had been in favor of the claimant “ the court might entertain a suit to enforce the decision of the Secretary, but not to revise or reverse it.” *(Kaufman’s*
      *515
      *fíase,*11 C. Cls., 659; affirmed in the Supreme Court, 96 U. S. R., 567; *Ramsey's*case, 14 C. Cls., 367; *Greencastle*Bank, 15 id., 225; *Sybrandfs case,*19 id., 461; *Bailey's ease,*17 id., 144; *Harrison's case,*20 id., 124; *Davidson’s fíase,*21 id., 298).

The decision of this court in the case of *Hoffheimer*v. *United States*(20 C. Cls., 371), construing a section of the internal-revenue laws, decides the principle involved in the case at bar.

The general principle that judicial powers, which are not subject to review by the courts, may be delegated to a public officer has been well stated in the case of *The United States*v. *Arredondo*(6 Pet., 691, 728, 729).

The decision in the Arredondo case was afterwards followed by the Supreme Court in the case of the *United States*v. *California and Oregon Land Company*(148 U. S., 31), where the court said:

“ Now, it is familiar law that when jurisdiction is delegated to any officer or tribunal, his or its determination is conclusive.

❖ ik ❖ *t'fi*íJí

“The judgment of a special tribunal is final and conclusive when no provision is made for appeal to any other jurisdiction.” (Land tribunal.) *(Foley*v. *Harrison,*15 How., 433, 446; 14 L. ed., 761.)

A large number of authorities were reviewed by the Supreme Court in the case of *Steele*v. *Smelting Company*(106 TJ. S., 447), and the conclusion was reached that a “ decision of a competent special tribunal is conclusive. And in the case of *Adams Express Company*v. *Ohio State Auditor*(165 U. S., 194, 229) the same court said that findings of fact made by a special tribunal can not be set aside except by evidence establishing fraud.

This court in the case of *Keim*v. *United States*(33 C. Cls., 174) laid down the rule which was afterwards affirmed by the Supreme Court (177 U. S., 290), that the Court of Claims will not review the decisions of the head of one of the executive departments in matters which have been committed to his discretion.

*516In the case of *Plummer*v. *United States*(21 C. Cls., 262) this court said.:

“Where a statute intrusts a public officer with a designated duty, the exercise of his discretion in performing that duty can not be reviewed if he acts within the general scope of his authority under the statute.”

And in the case of *Day*v. *United States*(24 C. Cls., 517) this court said:

“ The doctrine of *res judicata*applies to the decisions of the executive departments.”

See the case of *Kimberlin*v. *Commission to the Five Civilized Tribes*(104 Fed. R., 653), construing section 21 of the act of June 28, 1898 (30 Stat., 495), which delegated authority to the Dawes Commission to make up the Cherokee tribal roll.

In the recent case of *Bymarkiewiez*v. *United States*(42 C. Cls., 1), after discussing the conclusiveness of judgments of courts, Judge Barney said:

“ We might here add that the rule of *res judicata*is not alone applicable to what are generally considered by the profession as judgments, but judgments in the broader sense of the word, as embracing determinations and conclusions of other bodies than courts when the matter is within their jurisdiction.”

In the case of *Dunlap*v. *United States*(173 U. S., 65) the act which was the subject of construction provided for the refund of duties on alcohol used in the arts and medicine under such rules as might be prescribed by the Secretary of the Treasury. The Secretary refused to prescribe any rules. The court held that it was discretionary with him whether he should do so or not, and that unless he did so, however, the duties could not be refunded.

Finally, the attention of the court is called to the recent-case of *Little*v. *United States*(41 C. Cls. R., 408-413), where an act almost identical with the one now before the court was construed, and in which it was held that the Secretary of the Navy had exclusive jurisdiction of the claim, and the petition was accordingly dismissed.

*517Peelle, Ch. J.,

delivered the opinion of the court:

The question here presented arises on the defendants’ motion for a new trial on the ground of error of law in taking jurisdiction and rendering judgment in the claimant’s favor.

The claimant was a captain in the United States Army, detailed for and on duty as paymaster, Department of California, at San Francisco, and while on duty was, March 31, 1906, granted four months’ leave of absence. Before taking his leave he packed all his military uniforms, horse equipments, clothing, camp outfit, and all of his personal property required for use in the military service in three large chests, and left them in his office room in the Phelan Building in said city in charge of his clerk. On April 18, 1906, all of said property so left was wholly destroyed by earthquake and fire; and in the condition and place of storage it was impossible to otherwise protect or save the same, by reason of which the claimant suffered damages in the sum of $466.15, of which amount the claimant was paid $87.48, being his pro rata share of insurance in the Army Cooperative Fire Association, leaving $378.67 unpaid,

The claim so accruing was presented to the Auditor of the Treasury for the War Department, with the proper certificate from the department that the property so lost was necessary and proper for an officer to have while in quarters; but the claim was disallowed on the ground that as the “ officer was not giving his attention to saving Government property, but was absent with leave, no reimbursement can be made under the act of March 3, 1885.” (23 Stat. L., 350.)

Recovery is asked under this statute, which reads:

> “ *Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That the proper accounting officers of the Treasury be, and they are hereby, authorized and directed to examine into, ascertain, and determine the value of the private property belonging to officers and enlisted men in the military service of the United States which has been, or may hereafter be, lost or destroyed in the military service, under the following circumstances:

> “ First. When such loss or destruction was without fault or negligence on the part of the claimant.

> *518“ Second. Where the private property so lost or destroyed was shipped on board an unseaworthy vessel by order of any officer authorized to give such order or direct such shipment.

> “ Third. Where it appears that the loss or destruction of the private property of the claimant was in consequence of his having given his attention to the saving of the property belonging to the United States which was in danger at the same time and under similar circumstances. And the amount of such loss so ascertained and determined shall be paid out of any money in the Treasury not otherwise appropriated, and shall be in full for all such loss or damage: *Provided,*That any claim which shall be presented and acted on under authority of this act shall be held as finally determined, and shall never thereafter • be reopened or considered :• *And frovided further,*That this act shall not apply to losses sustained in time of war or hostilities with Indians: *And frovided further,*That the liability of the Government under this act shall be limited to such articles of personal property as the Secretary of War, in his discretion shall decide to be reasonable, useful, necessary, and proper for such officer or soldier while in quarters, engaged in the public service, in the line of duty: *And frovided, further,*That all claims now existing shall be presented within two years and not after from the passage of this act; and all such claims hereafter arising be presented within two years from the occurrence of the loss or destruction.”

The defendants raise the question of jurisdiction on the ground that the act confers exclusive jurisdiction on the accounting officers of the Treasury Department. We will therefore first determine this question.

i That it is within the power of Congress to confer exclusive jurisdiction on an executive department to decide and pass upon claims against the Government is no longer open to discussion.

In the case of *Ferry & Co.*v. *United States*(85 Fed Rep.,*550,*556) the Circuit Court of Appeals, by Judge Taft, now President, in construing the authority of the Secretary of the Treasury under Devised Statutes, section 2984, respecting the refund of customs duty as therein provided, said:

> *“*To give the Court of Claims jurisdiction to hear and determine a claim which by law is to be heard and determined by an executive officer is to allow the Court of Claims to re*519view- tbe decision of that officer. That Congress may do this is unquestioned. But that Congress is not to be presumed to have done this in a case arising under the revenue laws, where the Secretary of the Treasury is made the arbiter to hear and determine such a claim, is settled in the Nichols case (7 Wall., 122, 127). The court, in *United States*v. *Black,*followed an earlier decision of *Decatur*v. *Paulding*(14 Pet., 497), and made very clear by reason and authority, the distinction between the mere ministerial act of the executive officer, which may be controlled by the courts by mandamus, and an act in the performance of which an officer is vested with quasi judicial discretion.” (See also *Marshall*v. *United*States, 21 C. Cls., 307, 310; *United States v. Arredondo,*6 Peters, 691.)

The defendants contend that the present case is identical with that of *Little*(41 C. Cls., 408). There, however, an allowance had been made by the accounting officers within their discretion under the special act in that case independent of the value so fixed by the Secretary of the Navy, and the question was whether the value so fixed by the Secretary was conclusive. The court ruled that to so hold would make the Secretary the sole judge of the value of the articles lost as well as the articles required under the regulations. The act gave the accounting officers authority to seek other satisfactory proof of the value of the articles lost. This they did, and found the value, and the claimant accepted the sum so allowed him. In other words, the question of fact was determined by the accounting officers, and that done, the act provided “ That the relief granted by the provisions of this act shall be in full satisfaction of any and all claims whatever against the United States.” In other words, the acceptance of the amount allowed by the claimant operated as a satisfaction of “ all claims whatever against the United States ”: and for that reason the court held that no further relief could be granted by the court.

The case of *Moritz*v. *United States*(No. 23014), brought under a statute almost identical with the one in the *Little case,*and where an allowance had been made, was dismissed . on the authority of that case.

In the present case no allowance was made on the ground that at the time of the loss the officer was not giving his attention to saving Government property, being absent with *520leave. The question, therefore, is, Does the absence of the officer at the time of the loss, which rendered it impossible for him to give attention to saving the property, exclude him from recovery? In other words, was the absence of the officer and his consequent inability to save the property negligence on his part within the meaning of the special act which, in this respect, provides for recovery “ when such loss or destruction was without fault or negligence on the part of the claimant ” ?

We do not believe negligence can be attributed to the claimant under the circumstances of this case, as the loss and destruction of the property were not caused by theft or from insecurity of pacldng and storage, but were caused by the earthquake and fire; and from the history of that great calamity and the total destruction of a great part of the city of San Francisco we are justified in the conclusion that had the claimant been present his loss would in all probability have been the same.

Another question, however, arises under the third proviso to the act, viz, “ That the liability of the Government under this act shall be limited to such articles of personal property as the Secretary óf War, in his discretion, shall decide to be reasonable, useful, necessary, and proper for such officer or soldier while in quarters, engaged in the public service, in the line of -duty.”

Was the status ,of the officer while thus absent with leave for his own benefit different from that while “ in quarters, engaged in the public service, in the line of duty”? That he was in service there can be no doubt, and while so absent was subject to court-martial as a means of military discipline. But here it is contended the officer is claiming a benefit under a special statute designed to compensate officers and enlisted men for losses suffered by them “ while in quarters, engaged in the public service, in the line of duty.” That language, however, is clearly a limitation on the articles for which the officer is entitled to recover. That is to say, the officer is entitled to be paid for such articles of personal property as the Secretary of War, within his discretion, shall certify was necessary for him to have while “in quarters, engaged in the public service, in the line of *521duty.” Not that at the time of the loss he must actually have been “ in quarters,” for he might have been absent ah hour, a night, or a day; and if during such absence loss occurred without fault or negligence on his part he would be entitled to recover. Mere absence is not *per se*negligence. Therefore, in such case unless it can be shown that such absence in some way contributed to the loss no negligence will be imputed.

In the *McLean case*(45 C. Cls., 95) a special act authorized the accounting officers “ to settle and adjust ” the claim of the widow “ to all back pay and emoluments that would have been due and payable” to her husband at the time of his retirement. The court took jurisdiction and held that the duties of the accounting officers were simply administrative. Here, had the accounting officers ascertained any amount due and the same had been accepted by the claimant, it would, under the statute and the ruling in the *Little*case, have been “in full for all such loss or damage.” But the claimant was denied all relief on the ground that by reason of his absence he was not at the time of the loss “giving his attention to saving Government property.” That is to say, officers who suffer such loss while absent on leave are not embraced in the act. This is a question of law; and having decided that in the claimant’s favor, and the Secretary of War having certified as to the articles the claimant was entitled to have and the value thereof having been established, we must hold that under the facts of this case the claimant is entitled to recover. Therefore, the defendants’ motion for a new trial is overruled, the judgment to stand on the findings filed February 27, 1911, which are now printed herewith.