#### THOMAS C. GOODMAN v. THE UNITED STATES.

[No. 31599.

Decided February 26, 1917.]

*On the Proofs.*

*Jurisdiction; presentation.*— This court has no jurisdiction oí a claim for the value of personal property lost, brought under the act of March 3, 1C85, 23 Stat., 350, unless it be shown that the claim was presented to the accounting officers of the Treasury within the time fixed by the statute, *i. e.,*“ two years from the occurrence of the loss or destruction.”

*The Reporter's*statement of the case:

*Mr. George A. Ring*for the plaintiff. *King da King*were on the briefs.

The act of March 3, 1885, 23 Stat., 350, clearly embraces a case of this character and entitles the claimant, to recover the value of the property destroyed. The total value of the property lost by the claimant as contained in an inventory carefully prepared by himself and supported by the testimony of himself and wife is $3,216.

The Secretary of War was called upon by call of this court to state how much of that property was reasonable, useful, necessary, and proper for an officer to have while in quarters engaged in the public service in line of duty. His answer, given by the Chief of the Quartermaster Corps, excludes from the list of articles regarded as reasonable, useful, necessary, and proper within the terms of the act of 1885 *245certain pictures and other articles more in the nature of ornaments and luxuries than of necessities. A careful calculation of the articles which the War Department would thus exclude from the category of those falling within the purview of the act amounts to $651, leaving $2,565 as the value of the articles regarded as reasonable, useful, necessary and proper for the officer to have in quarters, engaged in the public service in the line of duty.

It will probably be contended on behalf of the United States that the failure of the Secretary of War to render an outright decision in the terms of the statute deprives the claimant in this case of all right of recovery. Such, however, is not the law.

In the case of *Railroad Com/pany*v. Smith, 9 Wall., 95, where the Secretary of the Interior was required by law to segregate swamp lands and to certify them to the States, the Secretary totally failed to perform the duty required by the act, and it was held that other testimony was competent to prove the fact. It was stated (p. 100):

“Any other rule results in this, that because the Secretary of the Interior has failed to discharge his duty in certifying these lands to the States, they, therefore, pass under a grant from which they are excepted beyond doubt; and this, when it can be proved by testimony capable of producing the fullest conviction, that they were of the class excluded from plaintiff’s grant.”

In *French*v. *Fyan,*93 U. S., 169, the distinction was made that where the Secretary had acted his finding in that respect should be accepted.

In this case the action of the War Department is entitled to respect as a decision, though couched in negative form, excluding articles of certain classes. If accepted in that light, it might be proper to exclude the value of the items thus declared by the War Department not properly allowable. The remaining articles are impliedly approved.

It will doubtless also be contended on behalf of the United States that this case is barred from not having been presented within two years to the accounting officers of the Treasury. This fact might have prevented an allowance by those officers.

*246It is not a bar, however, to an allowance by this court. The claim was presented to this court within six years of the time of the loss, and that is enough to authorize action on the merits by this court. The claim in the case of *Olin R.*Booth, No. 27837, was likewise not presented to the accounting officers within two years, or at any time, yet the court gave judgment in favor of the claimant. The case was appealed to the Supreme Court and so clear was it considered that the responsible law officers of the Government declined to argue in the Supreme Court that the judgment was erroneous, and dismissed the appeal without bringing the case to a hearing. That action should necessarily be conclusive in this case.

*Mr. George M.*Anderson, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

Hay, Judge,

reviewing the facts found to be established, delivered the opinion of the court:

This is a suit brought by the plaintiff to recover from the United States the value of certain property lost by the plaintiff in a fire at Seattle, Wash., on or about the 7th day of May, 1906. The plaintiff’s property was stored in a warehouse, which was the property of the United States. He brings this suit under the act of March 3, 1885, 23 Stat., 350.

This is an act providing for the compensation of. officers and enlisted men for property lost or destroyed in the United States military service, and among its other provisions is the following:

> *“And provided*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.”

It appears from the evidence in this case that the plaintiff did not present his claim for his alleged loss to the accounting officers of the Treasury within two years from the occurrence of the loss of the property. In fact, he did not at any time present his claim to the accounting officers or to anybody else. He brought suit in this court in March, 1912. The claim not having been presented to the accounting officers *247of the Treasury within the time fixed by the statute, the court is of opinion that it has not jurisdiction of this claim. The plaintiff relies upon the case of Olin R. Booth, No. 27837. But the facts in that case do not correspond with the facts in this case. In the case of *Newcomber*v. *United*States, 51 C. Cls., 409, Campbell, Chief Justice, in delivering the opinion of the court, discussed fully the facts in the Booth case, and stated: “When the Booth case is urged as an exception to the rule the facts must be similar to those we have detailed as applying in that case.” As the facts in this case are not similar to those in the Booth case, this case can not come within the exception to the rule.

The petition in this case will therefore be dismissed, and it is so ordered.

Downey, *Judge,*BaRney, *Judge,*Booth, *Judge,*and Campbell, *Chief Justice,*concur.