#### JOHN L. ALCOCK & COMPANY v. THE UNITED STATES

[No. C-1018.

Decided December 7, 1925]

*On the Proofs*

*Requisition; performance of contract.*— Plaintiff, having been permitted by the Government to make and perform certain foreign contracts for «lumber, according to their terms, and having been paid the agreed price, there was no requisition of its lumber by the Government that would entitle it to additional compensation from the United States.

*The Reporter’s*statement of the case:

*Mr. M. Carter Hall*for the plaintiff. *Mr. C. C. Carlin*and Carlin, *Carlin & Hall*and *Wade & Beck*were on the brief.

*Mr. P. M.*Cox, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff was at the time of the different transactions hereinafter mentioned, and still is, engaged in the business of purchasing, selling, and exporting lumber of all kinds, under the firm name and style of John L. Alcock *&*Company, with the principal office in Baltimore City, Maryland.

II. Prior to the entry of the United States into the World War, and for several months thereafter, agents of Great Britain, France, and Italy, as well as private firms dealing with manufacturers of airplanes in those countries, had contracted for a large part of the spruce and fir timber growing in the United States, more than the mills of the country could supply. From the entry of the United States into the war, April 6, 1917, to August, 1917, the Equipment Division of the Signal Corps of the Army made contracts with the various mills and lumber dealers to supply spruce and fir lumber for the manufacture of airplanes. Some time in August, 1917, the Spruce Production Division of the Signal Corps was organized, and Colonel Brice P. *313Disque, U. S. A., was placed in charge with station at Portland, Oregon. On September 7, 1917, a telegram, signed by the Secretary of War, was sent to all mills that had contracts with the Equipment Division of the Signal Corps, which reads:

“Under the provision of section 120 of the act of Congress approved June 3, 1916 (39 Stat. 166), entitled ‘ An act for making further and more effective provision for the national defense and for other purposes,’ you are hereby ordered to proceed with all possible haste in the production of airplane spruce on the order placed with your company by the equipment division of the Signal Corps. In filling this order you are further required to give preference thereto over all other orders without regard to the order or the date of contracting therefor, provided that this order shall not operate to interfere with necessary Navy work for the Government of the United States.

“ By direction of the President.”

This telegram was not sent to plaintiff.

III. There was established in the United States by the British Government during the World War for the purpose of procuring war material and supplies a branch of the British Ministry of Munitions of War, designated as the “ British Ministry of Munitions of War in the United States of America,” with headquarters in Washington, D. C., and a branch in New York. There was a subdivision of this organization called the Division of Aeronautical Supplies, which was engaged, among other duties, in procuring spruce and fir lumber for airplane construction, which during the transactions involved in this case was in charge of Captain David Thomson, of the Boyal Flying Corps. There were also French and Italian missions in the United States at the same time for the same general purposes, who so far as the matters concerned in this case go appear to have acted through the British organization. All of the lumber for airplane construction during this period appears to have been transported for the allies in British bottoms, upon permits issued to American brokers by the British Ministry of Munitions in this country and in England. Some time in December, 1917, Major Frederick W. Lead-better was assigned to the Spruce Production Section of Signal Corps, and appears to have been in charge for the *314United States during the same period. One of the functions of the Spruce Production Division was to allocate to the allies and the United States their respective proportions of lumber for airplane construction. Through Major Leadbetter and Captain Thomson the United States, Great Britain, France, and Italy agreed to discontinue the practice of ordering spruce and fir through private brokers and to order through the Spruce Production Division, and also agreed that permits to transport such lumber to brokers in allied countries would not be issued except through the Spruce Production Division. The Spruce Production Division was to release American brokers 60 per cent of the lumber embraced in their contracts with brokers in allied countries. The releasing was to be done and the sawing of the timber to be ordered by Colonel Disque at Portland, Oregon.

IY. Previous to February, 1918, plaintiff had placed with private parties in Great Britain, intended for use in the manufacture of aircraft for war purposes, orders for 301 cars of spruce and fir. (“ C. i. f. U. II.” means *“*cost, insurance, freight United Kingdom.”)

The orders are as follows:

“Orders Nos. 314 and 350, both of May 31, 1917, state No. 314 sold c. i. f. less 7%. Shipment to be made’ as soon as possible and not later than Oct./Nov. loading in the interior. War risk for buyer’s account. Certificate of the inspection to be final between shipper and buyer. Number 350 sold c. i. f. U. K. less 7% discount and commissions on c. i. f. value; buyer to have option of cancellation of any portion not shipped December 31, 1918; war risk for buyer’s account. Buyer to arrange ocean space and to pay invoice valuation after deducting all charges when cars are loaded in the interior; seller to provide inspection certificate with each carload which will be final between the shipper and the buyer. Shipment to be made to Boston, Baltimore, or* Pacific coast ports; buyer to get benefit of any saving in inland freight to Pacific coast ports.

“ Orders Nos. 336 and 339 of October 18 and November 1, 1917, respectively, state the lumber was sold f. o. b. cars in the interior less 7% for discount and commission; loading to be complete in February next on Order No. 336, and on Order No. 339 shipment to be made as soon as possible. Cer*315tificate of inspection to be final between the shipper and buyer under both orders.

“ Orders Nos. 343 and 344 of December 6, 1917, and Nos. 345 and 346 of December 13, 1917, respectively, state the lumber sold c. i. f. U. K., less 7% discount and commission on c. i. f. value. War risk for buyer’s account. Buyers to arrange ocean space and pay invoice valuation after deducting all charges when cars are loaded in the interior. Seller’s certificate with each carload shipped shall be final between the shipper and buyer. Shipment with all possible speed to Baltimore and Boston.”

According to instructions from Major Leadbetter, in charge of the production department of the United States Signal Corps, the plaintiff, on February 5, 1918, submitted to him the list of the 301 cars of pine and fir at Baltimore, or on the way there, that he had sold abroad, containing the car numbers of orders placed, and giving their order number, also his order number, the contract number, and the foreign contract date.

The difference between what plaintiff would have received had this lumber been delivered and paid for under these foreign contracts, with interest thereon at legal rate from February 5, 1918, and the amount which the owners actually received from the British, French, and Italian Governments under arrangement subsequently made for the disposition of the lumber, is what is claimed in this suit.

These differences, stated by contracts, are as follows:

95 cars of spruce-$54,289.91

(Exhibit A of petition.)

50 cars of spruce_ 12,156. 97

(Exhibit B of petition.)

116 cars of spruce_ 94, 732. 00

(Exhibit O of petition.)

32 cars of spruce_ 1, 706. 96

(Exhibit D of petition.)

8 cars of spruce- 361. 33

(Exhibit E of petition.)

Total_$163,247.17

At the time these foreign orders were placed the price for such lumber in the domestic market was advancing, and, after deducting ocean freight, brokerage, and insurance, the price under the orders was about ten to fifteen dollars per M cheaper than the price here.

*316V. Major Leadbetter requested plaintiff to come to bis office February 11, 1918, which was done, and there was had there a conference over the matter of the disposition of this lumber, representatives of the British, French, and Italian war missions, and Major Harris, the law officer of Major Leadbetter’s division, being present.

Previous to this discussion there was certain correspondence on the subject.

On January 16, 1918, plaintiff wrote General Cormack, of the British war mission here, as follows:

“ We have several contracts from Messrs. Cant & Kemp, Glasgow, to deliver to United Kingdom port, clear Oregon pine.

“ These contracts were negotiated during last August and later at regular intervals, and now we are confronted with the possibility of shipments on these contracts being upset, as the Aircraft Board talk of stopping our mills from filling these orders in the way they were placed, that is ‘ G ’ and all the better the log produced.

“ The mill informs us Colonel Disquepin charge at Portland, Oregon, has given instructions to sort the better' stock, and we think this ought not to apply on present contracts, but only to new contracts, and that all existing contracts should be completed as originally placed.”

To this letter General Cormack replied, January 18, 1918, as follows:

“We are obliged for yours of the 16th instant, and note your remarks regarding current contracts.

“ Please understand that all aeroplane fir is under the control of the Signal Corps here, Major Leadbetter’s department, and all our requirements are filled through his organization. We accordingly can not countenance or give any assistance to efforts running counter to Colonel Disque or Major Leadbetter’s orders, and strongly recommend you to act in the fullest cooperation with these gentlemen. If this is not done it seems to us that the old spruce position, with all its attendant complications, will be repeated.

“ If, however, you have any fir in cars or in transit which you have difficulty in getting moved, we shall be pleased to take this up with the U. S. authorities on receipt of full information from you.

“We are sending a copy of this letter and your letter to Major Leadbetter for his information.”

*317On February 8, 1918, the British war mission wrote the Chief Signal Officer, United States of America, as follows:

“ John L. Acock, of Baltimore, has sent us a copy of his letter to you of February 5th, giving certain particulars regarding his orders for aeroplane spruce. Captain Thomson was in Baltimore yesterday and discussed with Mr. Acock this and cognate matters.

“We understand the position to be somewhat as follows: Mr. Alcock has contracted to supply to Messrs. Cant & Kemp, of Glasgow, about six million feet of aeroplane spruce, approximately in quality to the export G List ‘ Clears.’ He is understood to have bought the bulk of this material from the Astoria Box Company, at prices which range from $15 to $85 per M. f. o. b. mills, but other manufacturers are also supplying him with lumber.

“ How much of this lumber is cut and is now ready for shipment we do not know, but presume the quantity is large. On the other hand, none has yet arrived at Baltimore, and Captain Thomson was therefore unable to form an opinion on the grading.

“ On the way to Baltimore, but chiefly in and around Chicago, there are; according to Mr. Alcock, ninety-six cars, say, two million feet, and similarly on the way to Galveston there are approximately twenty-eight cars, say, 560,000 feet of this spruce.”

Another communication of February 8, 1918, by the British war mission to the Chief Signal Oflicer, United States Army, states that—

“We understand that John L. Alcock, of Baltimore, has accepted orders from Cant & Kemp, of Glasgow, for 6,500,-000' of clear G List Douglas fir.

“ Of this about 121 cars, say, 2,500,000', have already been shipped from the west coast, and 25 cars, say, 500,000', are already in Baltimore. We have refused Alcock shipping ' facilities on this lumber until we can arrange with you how it is to be dealt with. We présume, in the first place, that Alcock’s orders on the various mills, in common with those of the British Admiralty on Thane and this mission on the Douglas Fir Emergency Bureau, will be immediately canceled, and their places taken by orders from the U. S. Government.

*“*In the event that this action is taken quickly, and that we shall not, therefore, require to take over more than, say, 4,000,000', we are prepared to make a deal with Mr. Alcock and provide him with the necessary shipping facilities. If *318this is agreed to, any quantity so shipped would, of course, form part of the British allocation.

“ This seems to us a fairly simple and expeditious method of dealing with Alcoclc’s contracts, and we shall be pleased to learn that the suggestion has your approval.”

At the conference of February 11, 1918, plaintiff was informed by Major Leadbetter that the Government had reached the conclusion that under existing conditions it was impossible to secure regular and sufficient supplies of spruce and fir lumber, and that plaintiff would have to consent to the delivery of his spruce and fir in accordance with the instructions of Major Leadbetter. The plaintiff stated to Major Leadbetter that he had sold his- 301 carloads of lumber to foreign purchasers and that his failure to deliver it to them would subject him to suit for nonperformance of his contracts and to great loss and damage. There appears to have been some discussion between plaintiff and Major Leadbetter about commandeering this lumber, but nothing was ever done about it.

VI. On February 12, 1918, plaintiff wrote Major Lead-better as follows:

“ Confirming my visit to you yesterday, and submitting the quantities of spruce and fir which we have on rail to Baltimore, Maryland, and Galveston, Texas, and at seaboards, and the instructions' you gave regarding the disposition of the same, will you please send me the usual notification of commandeering this stock, and authorizing me to make the deliveries.

“ I am proceeding, of course, in the manner you spoke yesterday, and will do everything possible to expedite the matters.”

On February 18, 1918, Major Leadbetter wrote plaintiff as follows:

WAR DEPARTMENT,

Office of the Chief Signal Officer,

*Washmgton, February 18, 1918.*From: Office, Chief Signal Officer.

To: John L. Alcock & Company, Baltimore, Md.

Subject: Priority Certificate.

1. Enclosed please find priority certificate No. P-6707 on application No. 43460, dated February 14, 1918, covering

*319“ 141 cars spruce, approximately 3,000,000 feet; 127 cars fir, approximately 2.750,000 feet; also any additional cars which may be shipped and have not been reported.”

2. This certificate is your protection and the order to deliver these pars at the direction of the Signal Corps takes precedence over all your orders. Please acknowledge receipt.

By direction of the Chief Signal Officer.

F. W. Leadbetter,

*Major, Signal Corps.*

By Geo. E. LippiNcott,

*2nd Lieut., 8. R. C. A. 8.*

Priority certificate No. 6707, enclosed with the above letter, is attached to plaintiff’s petition as “ Exhibit F ” and is made part of this finding by reference thereto.

Immediately following the conference of February 11, 1918, plaintiff took up with Captain Thomson, of the British war mission, and through him with the French and Italian war missions, the matter of payment for this 301 cars of lumber to be delivered to the three respective Governments, the same to be allocated between them by Major Leadbetter, and it was agreed verbally that for the fir the plaintiff was to receive $60 per M feet, subject to a 2 per cent discount, and for the spruce the cost of the lumber to the plaintiff at the.mill f. o. b. plus 5 per cent for expenses, delivery to be at the United States port of shipment abroad.

Some of the lumber brokers here went over the heads of Major Leadbetter and the British mission in the United States and obtained permits to ship their lumber on British vessels from the Ministry of Munitions in London. The plaintiff did not do this but followed the directions of Major Leadbetter, gave up its contracts with foreign brokers and dealt with agents of the Allies here.

No written contract was ever entered into with the French and Italian Governments, but there was an agreement, U. S. 3733, M. A. 94, bearing date of February 19, 1918, between his Britannic Majesty’s Government and plaintiff whereby the former agreed to purchase from the latter and the latter to sell to the former at the price and subject to terms and conditions thereinafter set forth in the agreement, Douglas .yellow'-fir lumber, the price being $60 per M *320feet, subject to a 2 per cent discount for payment made as provided in the agreement; and another agreement, U. S. 3845, M. A. 95, bearing date of February 21, 1918, whereby it was similarly agreed between the same parties to purchase and sell, upon and subject to conditions there-inafter set forth in the Agreement, silver-spruce lumber as follows: 46 carloads at $78.75, and 5 carloads at $89.25, now en route to Galveston, Tex., and 18 carloads at $78.75, and 4 carloads at $89.25, now en route to Baltimore, Md., payment therefor to be made within 10 days after presentation to the buyer at the office of J. P. Morgan & Co. of a proper invoice and documents showing delivery of any particular lot of this lumber at the point of delivery specified in the agreement, or at such point or points of delivery as may be otherwise specified by the buyer as provided therefor in the agreement. These agreements cover the part of the lumber in question that went to the British, and by reference thereto are made a part of this finding. The testimony does not show when the agreements were signed by the plaintiff, but does show that it was subsequent to the dates the agreements bear.

On February 27, 1918, J. P. Morgan & Co. wrote plaintiff acknowledging receipt of certain invoices and other papers they had presented to it, and advising it that the British Government had not filed with them any contract with plaintiff covering the materials invoiced; that payment could not be made until such contract was filed, and suggesting that plaintiff communicate with the British war mission purchasing department for instructions.

To this letter plaintiff replied February 28, 1918, that the material represented in the documents it had sent was bought on account of original contracts with timber merchants in the United Kingdom, and it had received instructions from the British war mission purchasing department, at New York, to send the particulars, together with the invoices, to the Morgan company; that the goods did not originate under a contract with the British Government, and therefore the invoices were not addressed to his Britannic Majesty; and that it was merely following instructions *321given by Major Leadbetter, Chief Signal Officer of the Army.

By letter of March 14, 1918, to the British war mission here, plaintiff acknowledged receipt of the two contracts mentioned above by two letters of March 7 and 8, 1918, respectively.

By letter of March 28, 1918, the British war mission, Washington, D. C., wrote plaintiff expressing doubt whether Morgan & Co. could be persuaded to pay without its executing the two contracts, as Morgan & Co. usually insisted on a formal contract being signed before payments were made, and that the mission would leave that in its hands to arrange as best possible in New York.

The plaintiff was paid in full by the British, French, and Italian Governments the price agreed upon with them for the part of the lumber each received.

The following order had been issued by the Chief Signal Officer:

WAR DEPARTMENT,

Oeeice oe the Chief Signal Officer,

119 D Street Northwest, • *Washington, D. G., September 10, 1917.*Office Memorandum No. 2.

1. Hereafter no informal or verbal orders for supplies, equipment, or services obligating Signal Corps funds will be placed by heads of divisions or others until after purchase requests covering the expenditure have been approved by the officer in charge of this division.

By order of Colonel Deeds:

C. A. Seoane,

*Lieut. Colonel, Signal Corps.*

The court decided that plaintiff was not entitled to recover.

Booth, *Judge,*

delivered the opinion of the court:

The plaintiff is a lumber broker, conducting an extensive business from Baltimore, Md. During 1917 it had a number of contracts with foreign lumber brokers in Great Britain to supply them with a vast quantity of spruce and fir *322lumber to be used in airplane manufacture. The plaintiff had been particularly fortunate in procuring from the lumber mills in the west millions of feet of the lumber specified in its contracts, and had either in its possession or in transit at the time this controversy arose 301 cars of lumber. This suit is for the recovery of the difference between the sum it actually received from Great Britain, France, and Italy for the 301 cars and the.market value of the lumber at the time it was sold, an aggregate sum of $163,247.17. Bight of recovery is predicated upon an alleged verbal commandeering of the lumber by the United States.

Prior to our entry into the war accredited representatives of Great Britain, France, and Italy came to this country, being charged, among many other duties, with the procurement of spruce and fir lumber for airplane construction. As soon as the United States became involved in the war, a critical situation with respect to this particular war commodity arose. The allied countries had outstanding contracts, and, the needs of the United States becoming acute, it became a question, in view of the limited supply and abnormal demand, as to what should be done. The conflicting interests of the several countries brought about confusion, or as was said by the British representative, “ the spruce situation was attended with complications.” To solve the attending difficulties, some time in August, 1917, the spruce production division of the Signal Corps of the Army was organized. Colonel Brice P. Disque was put in charge and stationed at Portland, Oregon. September 7, 1917, the Secretary of War, acting in pursuance of the act of June 3, 1916 (39 Stat. 166) the national defense act, dispatched to all the mills producing spruce and fir an order to proceed with all possible haste in the performance of Government contracts, and to give them preference irrespective of outstanding contracts or obligations to any other parties except the Navy Department. In December, 1917, Major Lead-better was assigned to the spruce production section of the spruce production division of the Signal Corps and became thereby in charge of the allocation of airplane lumber among the allied countries and the United States, the representa*323tives of Great Britain, France, and Italy having consented to discontinue the practice of procuring lumber by independent contracts and to thereafter order and procure it through the spruce production division of the Signal Corps and to limit the issuing of transportation permits to this division alone. The plaintiff, when the order of September 7, 1917, came to its attention, never having received official notification and appearing not to have known of it until January 16, 1918, became much alarmed over its status with respect thereto. On the above date it wrote to the British war commissioner, setting forth its predicament as to obtaining the necessary supplies to perform its contracts abroad, and suggested a way to afford it relief. At this time it had a large quantity of lumber either in its possession or on board the cars for shipment. The British commissioner advised it at once that the subject matter was under the exclusive control of the United States and that the allied countries were cooperating and would continue to cooperate with the spruce production division of the Signal Corps of the Army, Major Leadbetter’s department, volunteering, however, to use his good offices in securing permits for shipment of so much of plaintiff’s supply then in cars or transit. The plaintiff on February 5, 1918, communicated by letter with Major Leadbetter, for-warded a copy of the same to the British commissioner, and subsequent to the receipt of two additional letters from the commissioner, Major Leadbetter requested the plaintiff to come to his office. On February 11,1918, this conference was held. In addition to the plaintiff and Major Leadbetter, Major Harris, the law officer of the division, and the representatives of Great Britain, France, and Italy were present and took part in the proceedings. The plaintiff was informed by Major Leadbetter that the United States Government had taken control of the spruce and fir lumber situation and that it would be expected and would have to consent to the delivery of its lumber in accordance with his, Major Leadbetter’s, instructions. The plaintiff first protested, asserting mainly its contractual liability to private lumber brokers abroad, and apparently from the record the principal subject under discussion was the most feasible and lawful way which might be devised to enable *324the plaintiff to accede to the conditions and grant it immunity from loss from this source. It was evidently conceded that Great Britain, France, and Italy were to receive the lumber as per allocation, and there was some discussion between Major Leadbetter and the plaintiff as to Major Lead-better’s commandeering the entire lot. No formal or written order to this effect was ever issued or served upon the plaintiff. On the contrary, Major Leadbetter on February 18, 1918, mailed to the plaintiff priority certificate 6707, issued by the Council of National Defense, authorizing the delivery of the lumber at once, and thereafter the plaintiff, in pursuance of agreements so to do, made between itself and Great Britain, delivered the lumber to Great Britain, acting for the Allies, and received in full the agreed price from Morgan & Company, New York bankers, representing Great Britain in financial affairs in this country. The United States never received, used, or were ever called upon at the time to pay for any portion of this lumber sent abroad and allocated by the officers of the Signal Corps to Great Britain, France, and Italy.

The plaintiff rests its case primarily on an alleged verbal order of commandeering. This order it asserts was positively given by Major Leadbetter during the conference of February 11, 1918. In this respect the case is decidedly unique. We do not hesitate to say that even in the absence of being called upon to reconcile the conflicting statements with regard to this precise matter we would be exceedingly loath to impose a substantial liability upon the defendant upon mere spoken words, especially so when the whole conduct of the parties, from beginning to end, negatives an intention to requisition and leaves us no more to rest the facts upon than the mere statement of one party, positively and emphatically contradicted by the other.

The United States in the exercise of its war powers specifically granted by various acts of Congress sometimes requisitioned and on other occasions consummated the transaction by following a peremptory order with express contracts between the parties for the supplying of the materials. As a general rule it was the policy of the Government to contract where possible, and when contracts fol*325lowed the order the relationship between the contractor and the Government was determined by the contract, despite the necessary degree of compulsion which created it. *American Smelting & Refining Co.*v. *United States,*259 U.S. 75. In other words, if the manufacturer or dealer accepted the order and subsequently contracted as to price and delivery, the contract precluded the recovery of more than the contract price. The peremptory character of the order and forced obedience thereto protected the party upon whom it operated from liability for breach of existing contracts with third parties. *Omnia Commercial Co.*v. *United*States, 261 U.S. 502; *Roxford Knitting Co.*v. *Moore &*Tierney, 265 Fed. 177.

What was done by the Government in this case was the customary and usual proceedings indispensable to marshaling the lumber resources of the Nation, stimulating production, and supervising the equitable distribution of the supply among the countries at war. We will not advert to the necessities of the proceeding. It is sufficient to observe that the plaintiff fell in whole-heartedly, after some slight hesitation caused by its anxiety over private contracts, with the program and followed it implicitly. It submitted to government control of its -vast holdings of spruce and fir. Of course, what was done eventuated in its failure to perform its private contracts, to what extent is somewhat problematical, for, notwithstanding the degree of restraint imposed upon it, conditions were far from favorable to the accomplishment of private consignments of merchandise by rail, and trans-Atlantic transportation without governmental consent was practically impossible. In the end the Government of the United States allocated the plaintiff’s lumber to Great Britain, France, and Italy, and by a proper order placed it in a position to negotiate its sale with and secure its delivery to them. This the plaintiff did. It entered into contracts, and notwithstanding the date of their signature, it did not then, nor does it now, disclaim that these three countries failed to pay it the full amount agreed upon. The contracts in the record were voluntarily executed. Without this formality it would not have received payment from these countries for the lumber. Even pre*326ceding that transaction the plaintiff had inventoried the lumber to Great Britain, then representing our foreign allies; and the history of the transaction upon well-settled business principles governing the same unmistakably points to the fact that the plaintiff was fully aware with whom it was dealing and the source from which payment for its wares was to come. So, as a matter of fact, we believe the plaintiff’s lumber, whatever may have been its status in the beginning of governmental control, was not requisitioned by the United States, but, on the contrary, it was eventually granted freedom of contract as to price; that it did so contract and has received the amount agreed upon from the parties with whom it contracted. We need not cite authorities to sustain our position. The question has been many times adjudicated and the authorities are quite familiar.

In addition to what has been said, the authority of Major Leadbetter to commandeer has not been shown. The order of September 10, 1917, on its face, precludes the exercise of the power, except upon the conditions prescribed therein. The record is silent in this respect. The officer must be clothed with authority to act, and his authority must be shown. *B. & O. R. R. Co.*v. *United States,*261 U.S. 592.

The petition will be dismissed. It is so ordered.

Graham, *Judge;*Hay, *Judge;*Downey, *Judge;*and Campbell, *Chief*Justice, concur.