#### JOHN W. GREEN ET AL., EXECUTORS OF JAMES GREEN, DECEASED, v. THE UNITED STATES.

No. 12924

January 29, 1883.

By direction of the Secretary of War in 1861, the Surgeon-General of the Army, through the Quartermaster-General’s Office, selected, for immediate occupancy as a hospital for soldiers, the Mansion House, in Alexandria, Va. A subordinate officer was directed to take measures to rent and procure the building at the earliest practicable moment. He reported that he had rented it at a monthly rent of $750. The agreement to rent was oral.

It does not appear whether or not the transaction was approved by the Quartermaster-General. The only communication from him was one soon after the renting, saying the rent was extravagant and asking whether the owners were loyal, and no reply is found.

The defendants used and occupied the premises, but the owner was not paid because he refused to take the oath of allegiance.

The claimant executors, after his death, brought an action in this court to recover the rent. The court held that it had no jurisdiction, by reason of the statute of limitations (17 C. Cls. E., 174).

*94An appeal was taken to the Supreme Court. While that appeal was pending, the Secretary of War transmitted the same claim to this court under Revised Statutes, § 1003. It appears that the claim had been presented to the War Department within the time allowed hy the statute of limitations, and was still pending therein when it was thus transferred.

Held :

I.The *Aot of July*4, 1864 (13 Stat. L., 381), excluding this court from jurisdiction of “claims growing out of the destruction or appropriation of or damage to property hy the Army or Navy engaged in the suppression of the rehellion,” does not apply to claims for rent of property held and used hy contract during the rebellion.

II.Nor do the *Acts of July*4, 1864, ch. 240, and *February*21, 1867, ch. 57 (13 Stat. L., 380, and 14 Stat. L., 57), deprive the ^counting officers of the Treasury of authority to settle such claims in the Department.

III. When a claim is presented to a Department within six years after the cause of action accrued, and that Department has jurisdiction to settle the same, it may he transmitted to this court under Revised Statutes, *§*1063, at any time after the six years’ limitation mentioned in Revised Statutes, § 1069, has expired. It is not yet determined that a claim might not he so transmitted, althoughit had not heen presented to the Department until the expiration of six years after it had accrued.

IV. When a case is dismissed for want of jurisdiction, that is not such a final judgment upon the merits of the claim sued^upon as to *“*bar any further claim or demand against the United States arising out of the matters involved in the-controversy,” under Revised Statutes, § 1093.

V. A judgment of this court appealed from, while the appeal is pending, is not a final judgment within the meaning of section 1093 of the Revised Statutes.

VI.Where a lease is made hy a subordinate officer, upon the previous express directions of his superior, who has authority to direct it and to whom the fact is rejmrted, no subsequent approval is necessary if it he shown that the premises have heen occupied in accordance with the terms of the lease, with the knowledge of such superior officer and without objection from him.

The following are the facts found by the court:

I. At the times hereafter referred to, James Green, the testator of the claimants, was the owner of certain real property in Alexandria, Ya., and of the hotel thereon situated, known as the Mansion House. He was also a resident of Alexandria. The defendants, under the authority of the^War Department, as hereinafter set forth, used said hotel and premises for the purposes of a military hospital from the 11th November, 1861, *95until the 30th June, 1865, and acquired the use and occupancy of the premises in the manner set forth in the next finding.

II. On the 30th October, 1861, the Surgeon-General of the Army addressed the following communication to the Secretary of War, which was approved by the Secretary, and carried into operation in the manner indicated by the indorsements following it:

Surgeon-General’s Office,

*Oct. 30th,*1861.

Sir: In obedience to instructions from the Secretary of War, dated the 28th inst., I proceeded to Alexandria, and after a careful examination have selected the Mansion House in that city, from its commodious and enlarged accommodations, its perfect ventilation, and proximity to the railroad, as the best adapted site for an hospital for the wounded and siclr soldiers.

It will accommodate about ope thousand patients, is well supplied with gas and water, and does not require as many medical officers and appliances as smaller and more isolated buildings would render necessary.

I would recommend its immediate occupancf.

Very respectfully, your ob’d’t serv’t,

C. A. Finley,

*Surgeon-General.*

Hon. S. Cameron,

*Secretary of War.*

Endorsed as follows:

Approved:

War Def’t, Oct. 31, ’61.

Simon Cameron, *Secretary of War.*

Respectfully referred to the Quartermaster-General, with a request that the building within named be obtained and turned over to this Department for hospital purposes as soon as practicable.

C. A. Finley,

' *Surg. Gen’l.*

S. G. Office, *Nov.*1,1861.

Respectfully referred to Col. R. Ingalls, A. Q’master, U. S. Army, who will take measures to rent the Mansion House at Alexandria, and put it in proper condition for hospital purposes.

By order:

E. J. Sibley,

*Lt. Col., U. S. A., Left Q’r’ux’r-Qen’l.*

Q’r’m’r-Gen’l Office, *Nov.*5,1861.

Office of Ass’t Q’r’master,

*Arlington Depot, Va., Nov. 8,*1861.

Lieut. Ferguson will take measures to procure and place this building at the disposal of the Medical Department at the earliest moment possible in the manner indicated.

Rufus Ingalls,

*Lt. Col. Sr A. D. C., A. Q. M.*

*96Office Asst. Quartermaster,

*Alexandria, Va., Nov. 24th,*’61.

Rented Mansion House and transferred it to Asst. Snrg. Sheldon, Not. 11th, at a monthly rental of §750.

C. B. Ferguson,

2 *nil Li.,*10 *th Inft’y, A. A. Q. M., U. S. Army.*

Tlie transaction indicated by the last indorsement was an oral agreement entered into by the owner, James Green, and Lieutenant Ferguson.

Subsequent to this transaction and to the entry of the defendants and their occupancy, the Quartermaster-General addressed the following letter to Col. Bufus Ingalls, who was the officer of the Quartermaster’s Department having charge of the business of the Department in Alexandria, and the following correspondence took place between the Quartermaster-General’s Office and Colonel Ingalls:

Q’rm’r-Gen’l’s Office, *Washington, November*20f7i, 1861.

Colonel Rufus Ingalls,

*A. Q. M., V. S. A., Alexandria:*

Colonel : Please return to this office the letter of the Surgeon-General, approved by the Secretary of War and referred to you, recommending that the Mansion House, Alexandria, be taken for hospital purposes, as there is no complete record of the paper, with its endorsements, here.

Also inform this Department upon what terms the building has been secured.

M. C. Meigs, *Q’rm’r-General.*

Ass't Quartermaster’s Office, *Arlington Depot, Va., November $5th,*1861. General : I have the honor to transmit herewith the letter of the Surgeon-General called for in a letter from your office dated 20th instant.

The rent of building is shown in the endorsement of Lieut. Ferguson, A. A. Q. M. at Alexandria.

Col. Ingalls is absent.

Very respectfully, your ob’d’fc servant,

' Chas. B. Wagner,

*Capt., A. Q. M. Vol’s.*

Gen’l M. C. Meigs,

*Q’rm’r-Gen’l, V. S. A., Washington, D. C.*

*97Q’rm’r-Gen’l’s Office,

*November*30, 1861.

Capt. C. B. Wagner,

*A. Q. M., Vola., Arlington Depot,*

(Through Gen’l McClellan's h’dq’rs):

Captain : Your letter of the 25th inst., enclosing the letter of the Surgeon-General recommending the Mansion House, in Alexandria, for a hospital, called for by letter to Captain Ingalls, has been received.

The amount fixed for the vent of this house is extravagant. To whom does the property belougf Are the owners known to be loyal?

E. S. Sibley, *Dep’tg Q’nn’r-Gen’l.*

The reply of Colonel Ingalls to the last coinmucication from General Sibley cannot be found; and it does not a,ppear that this correspondence was communicated or in any way made known to James Green. No further expression of approval or disapproval concerning this transaction was made by the Quartermaster-General.

III. After the defendants had entered into the occupancy of the premises, as set forth in the preceding finding, Lieutenant Ferguson and his successor in charge took up and reported the same to the Quartermaster-General on his monthly report, according to Form No. 2, Quartermaster’s Department, Army Regulations 1863, p. 174, at the monthly rent of $750, and the building was so reported during its entire occupancy, except for the month of November, 1863, when it seems to have been accidentally omitted from the assistant quartermaster’s monthly report.

About the time the first monthly rent became due the owner applied to Lieutenant Ferguson for the same. That officer informed him that he was required to take an oath of allegiance to the Government of the United States before the rent could be paid. The owner refused to take the oath, for reasons given by him, and the rent was not paid. Subsequently he applied for the rent to the Quartermaster-General through his brother, Edwin Green, to whom on the 28th of March, 1864, the Quartermaster-General addressed the following letter:

War Department, Quartermaster-General’s Office,

*Washington, D. C., Mareh*28, 1864.

Mr. Edwin Green,

*Trustee, No.*504 lli/i *street, Washington City*:

Sir: Your letter of the 17th instant, in reference to the claim of James Green for rent of the Mansion House in Alexandria, Virginia, alleged to *98have been nsecl for hospital purposes since November, 18(il, has been received.

Upon reference of the case to the asst. qr. master at Alexandria, it has been ascertained that compensation, for the use of the property in question has not been paid, because Mr. James Green is believed to be disloyal to the United States, and has refused, and still refuses, to take the oath of allegiance.

Under the circumstances no rent can he allowed or paid for the use of the property owned by Mr. Green.

Tbe deed of trust dated July 28, 1863, and Mr. James Green’s letter to yon of the 3d ultimo, received from you on the 5th instant, are herewith returned.

Very respectfully, your obedient servant,

M. C. Meigs, *Quartermaster- General.*

On or about tbe 5th of May, 1865, the said, owner took and subscribed the following oath of allegiance:

State oe Virginia,

*Alexandria County, to wit:*

I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the laws made in pursuance thereof, as the supreme law of the land, anything in the constitution and laws of the State of Virginia, or in the ordinance of the convention which assembled at Richmond on the 13th day of February, 1861, to the contrary notwithstanding; and that I will uphold and.defend the government of Virginia as vindicated and restored by the convention assembled at Wheeling on the 11th day of June, 1861, and that I have not since the first day of January, 1864, voluntarily given aid or assistance, in any way, to those in rebellion against the Government of the United States for the purpose of promoting the same.

Alexandria, May, 1865.

James Gjreex.

No rent whatever has been paid by the defendants for the use and occupation of the Mansion House as before described.

IV. Shortly after the close of the war, and at various times thereafter, the claimant made application at the Quartermaster-General’s Office for all papers showing any authority given by the Secretary of War for renting the Mansion House in Alexandria for hospital purposes, and for any paper of the same general purport, and likewise for any paper showing Lieutenant Ferguson’s authority from the Quartermaster-General to rent the property. Search was made for the same by the clerks of the Quartermaster-General’s Office without any such paper being found,- and repeated applications were made by the attorney of James Green for a renewed search during a period extending from the close of the war until December, 1877.

*99In May, 1872, James Green also sent the following application to the Secretary of War, by whom it was referred to the Quartermaster-General, and ultimately to the accounting officers of the Treasury, as shown by the indorsements thereon:

Albx’a, Va., *May*3, 1872.

To Hon. William W. Belknap,

*Secretary of War:*

Sir: I beg leave to call your attention to my claim against the United States and ask that yon direct the payment thereof.

The Government rented during the war my property, “The Mansion House Hotel,” in the city of Alexandria, at seven hundred and fifty dollars per month, from the 11th day of November, 1861, to the 30th day of June, 1865. The property was greatly damaged over and above the ordinary wear and tear, and the Government had the damages appraised. I was never furnished with a statement of the apiiraisement, but am satisfied that it could not have been less than five thousand dollars.

The rent amounted to. $32,750

Damages, say. 5,000

Mating the total sum. $37,750

I have never received one dollar of this amonnt, and as it stands to my credit on the books of the Quartermaster-General’s Office, and as there is no reason whatever why the same should not be paid to me, I respectfully request that your honor will direct its payment as soon as possible.

Very respectfully, your ob’d’t serv’t,

James Green.

Endorsed as follows:

Respectfully returned to the Hon. Secretary of War. Attention is invited to the enclosed copy of endorsement to Hon. Elliott M. Braxton, M. 0., Washin., D. C., on the subject, April 23d, 1872. The claim is a proper one for the consideration of the Southern Claims Commission.

M. C. Meigs,

*Qxm'termasier-General, But. Maj.*Gen’l, *TJ. S. A.*

Q. M. G. O., *May*18, ’72.

War Department, *July*16, 1872.

Respectfully returned to the Quartermaster-General. The Commissioners of Claims hold that they have no jurisdiction in claims for rent. This claim, unless it arises out of a contract execute^ on the part of the Government by its authorized officer, is excluded from settlement by the implied prohibition of the act of Eobruary 21, 1867, chap. 57. All the papers and evidence as to the lease will be transmitted to the accounting officers of tho Treasury.

Wm. W. Belknap,

*Secretary of War.*

Resxiectfully referred to the accounting officers of the Treasury, and attention invited to the foregoing endorsement of the Secretary of War.

There are no other papers in the case here, and records do not show that a lease of the premises was ever formally executed.

By order of the Q. M. General.

M. I. Ludington,

Q. M. G. O., *July*31, 1872. *Quartermaster, TI. S. A.*

*100James Green also applied to Congress for relief, and tbe chairman of the Committee on War Claims addressed the following communication to the Quartermaster-General:

House or Representatives, *Washington, X). G., May*25, lb76.

Sir: A claim of James Green, of Alexandria, Va., is pending before the Committee on War Claims, for the rent of the “Mansion House” hotel, alleged to have been used by the U. S. Government for hospital purposes from Nov. 11,1861, to June 30, 1865, at a rental of $750.00 per month.

Claimant alleges that no part of the claim has been paid. Will you please give any information in your Department relative to the validity or invalidity of this *claim;*also whether any part of the same has been paid.

John R. Edion,

*Chairman.*

To the Quartermaster-General, U. S. A.

The Quartermaster-General replied to this communication on the 27th May, 1876, and again on the 5th June, 1876, giving information concerning the unpaid condition of the rent, but. making no mention of or reference to the communication of the Surgeon-General set forth in finding II; nor mention of any other order or authority relating to the validity or invalidity of the claim.

In December, 1877, one of the clerks in the Quartermaster-General’s Offce, who had previously searched for the papers, while searching among a mass of old papers in the fifth story of the office, unexpectedly found the application of the Surgeon-General with the indorsements thereon set forth in finding II. The existence of the paper and its contents then first became known to James Green or his attorney.

Y. This suit is for the same cause of action as that set forth in No. 12416 on the general docket of this court, and the foregoing findings of fact substantially embrace all the facts and findings in that case. The ruling of the court upon the findings in that case was as follows:

On the foregoing findings of fact the court decides, as conclusions of law, that—

The claim accrued on the 3d of April, 1872, and the petition not having been filed until the 14th of March, 1881, the action is barred by the statute of limitations.

Thereupon, April 3, 1882, the following judgment was entered :

The court, on due consideration of the promises, find for the defendauts, and do order, adjudge, and decree that the petition be dismissed.

*101■From this judgment, claimants, June 16,1882, appealed. The appeal was duly allowed by the court, and is still pending.

*Mr. H. 0. Clcmghton*for the claimant:

The defendant rules upon the ground of defense, 1st, want of jurisdiction ; 2d, that the Act of February 21,1867, prohibits the settlement of this claim by the accounting officers of the Treasury.

Inasmuch as a want of jurisdiction on the part of the accounting officers would inhere to the claim after its transfer to this court, it may be said that the only defense is want of jurisdiction.

■ The defendant claims that the court has no jurisdiction because the case is *res judicata*within the terms of section 1093 of the Eevised Statutes, and because the Act of February 21,1867 (14 Stat. L., 57), excludes j urisdiction on the part of the accounting officers.

1. Section 1069 of the Eevised Statutes was not intended to control the action of this court over cases litigated here, but to prevent the Departments or Congress from paying claims which had been prosecuted before, and decided by this court adversely to the claimants. However this may be, the law is too well settled for controversy, that a judgment dismissing a case for want of jurisdiction is not a final judgment in the sense that it is *res judicata.*(Freeman on Judgments, § 263; Green-leaf’s Evidence, §§ 529, 530.) This has repeatedly been held to be the law as to the judgments of this court. *(Spicer*v. *United States, 5*C. Ols. E., 34; *Hughes*v. *United States,*4 Wall., 232.)

To hold that a judgment declaring that the court has no jurisdiction to consider the merits is a final judgment upon the merits, would be to assert a paradox.

2. The *Act of February*21, 1867 (14 Stat. L., 57), does not prohibit the accounting officers from allowing claims like this. That act refers to the same class of cases provided for in the *Act of July*4, 1864 (13 Stat. L., 381) — cases not arising under contract. The Act of July 4, authorized the payment of claims of loyal citizens residing in loyal States for property appropri-of ated or used by the troops. And the Act of February 21 qirali-fied the former act so as to exclude claims for property taken *102and used in the insurrectionary districts. Neither act has any reference to claims arising under express contract.

This claim does not arise because of the occupation of real estate by the military authorities or troops of the United States, but under an express contract of renting, by which the United States expressly promised to pay $750 per month rent for the property.

The property was first selected by the Surgeon-General under the direction of the Secretary of War, and when selected was rented by the Secretary of War, through the Quartermaster-General’s Department, by an express contract which made it immaterial to the lessor how it was occupied, or whether it was occupied at all or not.

The contract thus expressly authorized and expressly executed antedated the occupation. This claim is for a *debt*under a contract, and not for *damages*because of *occupation.*

This was the construction which the late Attorney-General placed upon the act. (12 Opin., 439.)

*Mr. John 8. Blair*(with whom was *Mr. Thomas Simons,*Assistant Attorney-General) for the United States:

1. The present action is barred under section 1093, Revised Statutes, by reason of its dismissal at last term. (17 O. Ols. R., 174.) Congress must have meant more in that law than enacting the principle of *res judicata,*for that would have been unnecessary. The words “forever barred” mean that the bar is removable only by the law-making power.

2. *By the act oflQth February,*1867 (Oh. 57,14 Stat. L., 397), the settlement of any claims for the *occupation*of real estate by the military authorities of the United Stat.es was prohibited where the claim originated during the war in a State or part of a State declared in insurrection. It is plain that the word occupation there was used, not in the sense of appropriation, but in its ordinary sense of possession, tenure, or use. The act is one construing the Act of July 4,1864, in which the word appropriation is used, and indeed “appropriation” appears in the Act of 1867 in connection with personal property. Again, the Act of 1867 precludes the settlement of claims for supplies furnished as well as taken, and it is fair to assume that the same purpose animated Congress in the matter of real estate as in supplies and personal property.

*103Whether, therefore, the house in question was occupied under-a contract or under a seizure or appropriation, it was equally beyond the power of executive officers to pass upon the claim... And it does not appear that the Act of 1867 has ever received any other interpretation by the accounting officers of the Government.

While it might be plausibly urged that Filor would have recovered had he shown a valid contract, it is clear that the Act-of 1864 there discussed used language different from the one-before us. It was passed immediately after the decision in the-*(Jane of*Grant, March 2, 1864 (1 O. Gis. R., 41), and the first section was intended to prevent the Court of Claims from indemnifying property holders for losses incident to a state of war. The second and third sections meant to localize the claims to be allowed by the executive officers, leaving open the question whether the jurisdiction was to be determined by the locality of the citizen or the *locus*where the supplies and subsistence were furnished or taken.

It was to settle this question (Congressional Globe, Thirty-ninth Congress, second session, pp. 1000,1001) that the Act of 1867 made the *origin*of the claim the test. As is said by Auditor EZeightley, “no one had ever supposed that the accounting officers could entertain a claim resting merely upon a technical trespass upon real estate,” and if any effect is to be given to the words “occupation of real estate” it is only by excluding one who claims under a contract from the accounting officers, and relegating him to the Court- of Claims, from which he is not excluded by either the Act of 1864 or 1867. If this view be correct the Secretary was without authority to transmit the claim. *(Hart’s Case,*15 O. Gis. R., 427; 16 Ibid., 485.)

OPINION.

Scofield, J.,

delivered the opinion of the court:

The statement of a very few facts will be sufficient to exhibit all the points in dispute.

In October, 1861, the defendants, by such contract as is presented in the second finding of facts, rented from the claimants’ testator, for use as a military hospital, the Mansion House, in Alexandria, Va., and agreed to pay therefor $750 a month. They took possession under the lease and occupied the premises *104from November 11, 1861, to June 30, 1865. The rent, amounting in all to $32,750, lias never been paid. Claimants’ testator, in March, 1864-, made formal application to the War Department for payment of the rent, and before and after the surrender of the premises continued to press his claim. The claim was finally referred by the War Department to the accounting officers of the Treasury Department, where it remained until May 10, 1882, when, under the provision of section 1063 of the Devised Statutes, it was transmitted by the Secretary of the Treasury to this court for trial and adjudication.

Here it encounters several objections.

First. Iv is said the Court of Claims cannot take cognizance of it, both because it does not come within its original jurisdiction as restricted by the first section of the Act of July 4, 1864, and because the Treasury Department, under the second and third sections of said Act of July 4, 1864, ch. 240, and the Act of February 21, 1867, ch. 57, had no authority to entertain it. (13 Stat. L., 381, and 14 Stat. L., 57.)

In considering this objection, we assume for the present that the lease or contract set out in the second finding of facts is valid and binding upon the Government.

It is conceded that no claim transmitted by a Department can be entertained by this court unless it comes within its jurisdiction, otherwise conferred, nor unless the Department by which it is transmitted could itself legally consider and decide it.

It ¡is not denied that this court has general jurisdiction of claims founded upon contract, but it is supposed that this particular claim is taken out of that general jurisdiction by the first section of the *Act of July*4, 1864 (13 Stat. L., 381), which is as follows:

> The jurisdiction of the Court of Claims shall not extend to or include any claim against t-lie United States growing out of the destruction or appropriation of or damage to property by the Army or Navy, or any part of the Arm.y or Navy, engaged in the suppression of the rebellion, from the commencement to the close thereof.

It is not easy to see how claims founded upon express contracts made by a Department, and agreeing to pay specific sums of money, can be classed with unliquidated claims for “ destruction, appropriation, or damage to property by the Army or Navy,” and so brought under the ban of this act. A contract presupposes action and agreement of two parties, but “destruction, *105appropriation, and damage” imply action by one party only and dissent by another. In the *Filor Oase*(9 Wall., 45, and 7 C. *Cls. R.,*119) Justice Field, speaking for the court, says :

> If tlie right to the property or its use is not obtained by valid contract with the Government, the tailing or use of it is an appropriation within the meaning of the act of Congress. The learned counsel of the petitioners is correct in stating that leasing and appropriation are different acts.

Assuming as above stated that tbe lease is valid, we come to the conclusion that this claim is not withdrawn from the juris■diction of the court by the first section of the Act of July 4, 1864.

Does it also come within the jurisdiction of the Treasury Department1?

It is not denied that, prior to the Act of July 4, 1864, the Secretary and accounting officers of the Treasury had power to •examine, audit, and pay from any proper appropriation claims .against the Government, liquidated iu amount and based upon valid contracts. The second and third sections of the Act of 1864 was passed, not to diminish but to enlarge the powers of these officers. The second section is as follows:

> All claims of loyal citizens in States not iu rebellion for quartermaster’s ■stores actually furnished to the Army of the United States, and receipted for by the proper officer receiving the same, or which may have been taken by such officers without giving such receipt, may be submitted to the Quartermaster-General of the United States, accompanied with such proofs .as each claimant can present of the facts in his case; and it shall he the duty of thq Quartermaster-General to cause such claim to he examined, and if convinced that it is just, and of the loyalty of the claimant, and that the •stores have been actually received or taken for the use of and used by said Army, then to report each oase to the Third Auditor of the Treasury, with a recommendation for settlement.

The third section confers similar power upon the Commissary - ■General. The Act of February 21, 1867, only circumscribes .and restrains the power specially conferred by this Act ot 1864. It is as follows:

> ' • The provisions of chapter two hundred and forty, of the aots of the Thirty-eighth Congress, first session, approved July fourth, eighteen hundred, and •sixty-four, shall not be construed to authorize the settlement of any claim for supplies or stores taken or furnished for the use of, or used by, the armies of the United States, nor for the occupation of, or injury to, real .estate,norfortheconsumption, appropriation, or destruction of, or damage to, personal property by the military authorities or troops of the United States, where such claim originated during the war for the suppression of the South•ern rebellion, in a Statg or part of a State declared in insurrection by the proc*106lamation of the President of the United States, dated July first, eighteen hundred and sixty-two, or in a State which by an ordinance of secession attempted to withdraw from the United States Government.

It will be seen that these two acts do not withdraw, diminish,, or in any way affect the authority possessed by the Departments prior to 1864 to settle contract debts of the- Government. It-cannot be claimed that- this act prohibits the settlement of a claim for the occupation of real estate by the military authorities, where such claim originated during the war in an insur-rectionary or seceding State, unless the power to settle the-same was derived from the Act of 1864. As the power to settle *contract claims*was not conferred by the act of 1864, it was not taken away by the Act of February 21, 1867. This claim,, it should always be borne in mind, is not for use and occupation of real estate, but for a specific sum of money alleged to be due upon an expressed contract. To be sure, the consideration of the contract was the right to occupy real estate, but taking and holding by contract excludes the idea of military occupation within the meaning of the Act of 1867.

This view of the law is sustained byAttorney;GeneralEvarts in *Rollings' Case*(12 Opin., 439).

There is nothing in the letter, spirit, or apparent purpose of the Act of 1867 which would absolve the Government from the payment of its contract debts, or deprive citizens of remedies therefor theretofore enjoyed.

Second. The defendants claim that the judgment of dismissal, as set out in the fifth finding of facts, is, under section 1093 of' the Eevised Statutes, a bar to recovery here. That section reads as follows:

> Sec. 1093. Any final judgment against the claimant on anjr claim prosecuted as provided in this chapter shall forever bar any further claim or demand, against the United States arising out of the matters involved in the controversy.

It will be remembered that this court is forbidden to take jurisdiction of a claim more than six years old, and the court having found as a fact that the claim in that case was more than six years old dismissed it for want of jurisdiction.

Was this a *u*final judgment on the *claim” V*

The claimants come to the threshold of the court and crave a hearing They are informed that the court is forbidden by the statute of limitations to listen to their prajrnr. They are *107turned away. This is not an adjudication of tbeir claim, but a refusal to hear it. Certainly this should not deprive them of a hearing before a tribunal otherwise authorized to entertaiu their petition. *(Hughes's Case,*4 Wall., 232; *Spicer’s Case, 5*C. Cls. R., 34.)

•Besides, an appeal from this judgment has been taken, and is still pending; and for this reason also the judgment is not final.

The case, as it now comes to us through the Treasury Department, does not encounter the statute of limitations, at least not in the same way nor to the same extent. It is claimed to have been presented to the Department within six years after it accrued, and, if so, it is not affected by the statute. The proceeding here is held to be a continuation of the proceedings in the Department, and, if begun there in time, it can be heard here now. *(Lippitt’s Case,*100 U. S. R., 663.) It appears by the findings that application for the payment of accrued rent was made to the Quartermaster-G-eneral as early as March 17, 1804; and that shortly after the close of the war, and at various times thereafter, the pending application for payment was followed, in furtherance of the claim, by applications for papers showing the authority from the War Department to make the contract. In 1872 a second application for payment was made to the Secretary of War. From the War Department the claim was sent before the accounting officers of the Treasury Department, where it had been pending, until transmitted to the Court of Claims, May 10,1882. From these facts we hold that the claim was presented to the Department within six years from the time it accrued, and is not, therefore, barred by the statute.

But even if the claim had not been presented to the Department 'within six years after it had accrued, it is not at all clear that that fact would deprive this court of jurisdiction. No court, so far as we know, has so decided, and the statutes are certainly susceptible of a more liberal construction. The general question has been often raised in this court, but in no case in which the facts required a decision specifically upon this point. And in the discussion of the general questiou in these opinions, no distinction is made between claims presented to the Department before and those presented after the six years *108have expired. *(Winnisimmet & Co.’s*Case, 12 C. Cls. R., 319; *Lippitt’s Case,*14 C. Cls. R., 148). The question is not passed upon by the Supreme Court in *Lippitt’s Case*(100 U. S. R., 663), as has been stated. In that ease Justice Harlan, delivering the opinion of the court, says:

> Whether if a elaim he presented at the proper Department, when six years have elapsed after it first accrued, the Government is at liberty, upon its transfer therefrom to the Court of Claims, to plead the limitation of six years, or whether the court in such cases must itself interpose the statute for the protection of the Government, are questions not necessary to be decided in this case.

The only remaining question tobe considered is, whether the property was held under a valid contract with the Government or by military occupation only. If by military occupation only, it is conceded that the power to settle the claim was withheld from the Department by the Act of February 21,1867, and having no jurisdiction itself, it could transfer none to us.

Was there a valid contract?

October 28, 1861, the Surgeon-General, by direction of the Secretary of War, went to Alexandria to select a place for a military hospital. October 30, 1861, he reported to the Secretary as follows:

> In obedience to instructions, I proceeded to Alexandria, and, after a careful examination, have selected the Mansion House in that city, from its commodious and. enlarged accommodations, its perfect ventilation and proximity to the railroad, as the host adapted site for an hospital for the wounded and sick soldiers. It will accommodate about one thousand patients, is well supplied with gas and water, and does not require as many medical officers and appliauoes as smaller and more isolated buildings would render necessary.

October 31, 1861, the action of the Surgeon-General was approved by the Secretary of War, and November 1, 1861, it was referred by the Surgeon-General to- the Quartermaster-General, “with a request that the building within named be obtained and turned over to this (the Surgeon-General’s) Department for hospital purposes as soon as practicable.” November 5, 1861, this report, approval, and request was referred by the Quartermaster-General to Colonel Ingalls, assistant quartermaster, with headquarters at Arlington, with instructions to *“take measures to rent*the Mansion House, at Alexandria, and put it in proper condition for hospital purposes.” November 8, 1861, Colonel Ingalls directed his sub*109ordinate officer, Lieutenant Furguson, acting assistant quartermaster, stationed at Alexandria, ■ to “ take measures to procure and place this building at the disposal of the Medical Department at the earliest moment possible, *in the manner indicated*that is, by *renting*it in obedience to the order of the Qnartermaster-General. November 24, 1861, Lieutenant Fur-guson reported that he had “ *rented*the Mansion House, and transferred it November 11,1861, to Assistant Surgeon Shelden, at a monthly rental of $750.”

It will be observed that the authority to select a place for the hospital was derived directly from the Secretary of War, and the authority to rent the Mansion. House after it had been selected came from the Quartermaster-General. He gave the order to rent, and left the price to the discretion of his subordinates. The premises were rented by his officers and order. The terms were duly reported to him, and the report was finally retained, and filed, without official dissent. Possession was taken in pursuance of the lease, and thereafter the monthly report to the Quartermaster-General by the officer in charge stated the amount of rent falling du'é upon it from month to. month.

In the *Filor Case*(9 Wall., 45) the facts are widely different. In that case the lease was made by a subordinate officer without any authority or pretended authority whatever. It was made, too, after the officer in command had given an brder for the seizure and occupancy of the premises. That lease was neither authorized by the Quartermaster-General in advance nor approved by him afterwards. On the contrary, some years after, but during the occupancy of the premises, it was expressly disapproved by him. .“The agreement or lease,” says Justice Field, “was, so far as the Government is concerned,, the work of strangers.” In the case at bar, it will be observed, the Quartermaster-General not only authorized but commanded his subordinate officer to *rent*the premises.

' But it is objected that the lease was not expressly affirmed by the Quartermaster-General. Did its validity depend upon such express affirmation? Is not a contract made through a. subordinate officer, by an express written order of the Quartermaster-General, a contract made by himself? We think it should be so regarded, unless, after officially learning how his order had been executed, he disapproved it. In such a case-*110non-action should be held as affirmance. There is nothing in this case to indicate disapproval. His letter to Colonel In galls, in which he expresses the opinion that the rent is extravagant, and inquires about the loyalty of the lessor, amounts only to a consultation with his own officers upon the subject. It was not brought to the attention of the lessor. If any presumption is to be drawn from this correspondence it is in favor of the validity of the lease, for it shows that after his attention had been particularly drawn to the subject, and after inquiry, consultation, and consideration, he left on the records of the Department no sign of disapproval.

Upon the trial it was not proved nor even alleged that the rent was in fact extravagant. In the absence of all evidence the court cannot presume that $9,000 a year for a hotel in the city of Alexandria, “with commodious and enlarged accommodations, perfect ventilation, well supplied with water and gas, and capable of accommodating one thousand patients,” was at that time an extravagant rent. It is quite probable that the Quartermaster-General, after his consultation with Colonel Ingalls, came to that conclusion, and for that reason did not disapprove of the report of his subordinate.

It is further said that the disaffirmance of the lease can be presumed from the refusal to pay the rent. But no presumption of that kind can arise, since another reason was distinctly given at the time. When the lessor called upon the assistant quartermaster for his rent he was required, as a condition precedent to payment, to take .the oath of allegiance. He declined, and, for this reason and no other, payment was refused. When, in March, 1804, he requested payment at the Quartermaster-General’s Office, he was informed by letter, signed by Quartermaster-General Meigs, that he had “not been paid because he was believed to be disloyal to the United States, and had refused to take the oath of allegiance.” There is no intimation that the lease was regarded as invalid. However prudent and justifiable this requirement of General Meigs might have been at the time, a failure to comply with it is not now urged as a defense. The reason for the refusal to take the oath does not appear in the findings, but it is stated in the argument by counsel for the Government that he owned property in the Confederate States and was afraid of confiscation. At all *111•events, in May, 1865, after the danger was over, he took the required oath.

But if it should be held that a lease made under an express written order of the Quartermaster-General required his subsequent approval, could not such approval, as in the *Case of Speed*(8 Wall., 77, and 7 C. Cls. R., 93), be presumed from the facts stated? In Speed’s Case, although the contract made by a subordinate officer and by its own terms was void unless approved by the Commissary-General, and although it was never expressly approved by him nor even reported to him for that purpose, yet, from facts no more convincing than those appearing in the findings here, his approval was presumed.

The judgment of the court is that the claimants recover from the defendants the sum of $32,750.