Supreme Court in the case of Lieut. Walter S. Crosley, giving additional pay for service as aid to a rear-admiral, and requesting that this case be taken up and a decision rendered as to the jurisdiction of the Auditor's Office in cases once filed in the Court of Claims and dismissed on motion of the claimant without a hearing on the merits. "This is one of a number of cases which were filed in the Court of Claims, the petition dismissed, and the claims filed. in this Office. "In this case a copy of the petition was furnished the Comptroller with the call from the Attorney-General for information. This Office made a report to the Comptroller September 28, 1900. It would seem to be a duplication of work imposed upon the accounting officers in making a report for the information and assistance of the Department of Justice, and then because the claim can be sooner paid, have the case dismissed and file the same claim in the Treasury Department. "The following is a copy of decision of Second Comptroller Butler in the claim of Lieut. Commander John K. Winn, U. S. Navy, June 4, 1887, Navy Division Letter Book 6, page 188: "TREASURY DEPARTMENT, "SECOND COMPTROLLER'S OFFICE, IN THE MATTER OF AN APPLICATION THAT THE CLAIM OF LIEUT. "Memorandum. "This claim for longevity pay comes from the Fourth Auditor allowed. By the papers forming a part of the case it is shown that this claim, having been filed with the accounting officers, was removed to the Court of Claims, where it has been prosecuted; that judgment has been there rendered in favor of the claimant; that subsequently, by agreement of counsel and of the Assistant Attorney-General, this judgment was vacated and the petition dismissed without prejudice, and that application is now made to the accounting officers to adjudicate upon the claim de noro for the reason that there is at present no appropriation to pay the judgment. It appears that the judgment of the court was for the full amount demanded by the claimant, but, notwithstanding this, the accounting officers are requested to examine and allow the claim. "There is no question but that either the Court of Claims or the accounting officers may pass upon this case in its entirety. It is incumbent upon the accounting officers to take up the case after a judgment for claimant in the court, because at the time judgment was entered there were no funds available to satisfy the same. "By proceeding in the court the claimant has elected the jurisdiction wherein to assert his rights; he has prosecuted his claim to judgment, whereby he is awarded the same amount that he would have received had his claim been allowed by the accounting officers. It would seem that these officers could without impropriety decline to hear this case, applying the doctrine of res adjudicata, despite the vacating of the judgment, when it is apparent that the course adopted by the claimant is not to increase the final award or allowance as against the Government or to give him any rights as against the Government not already accorded by the Court of Claims, but to put him in such a position that possibly as a claim, if allowed, it may be paid sooner than as a judgment it would be satisfied. "The effect of acceding to the claimant's request would be to multiply the work of the officers of the Government to an unnecessary extent and for that reason it is thought best that claimants, having elected the jurisdiction in which they could rightfully and properly prove their claim, and having secured therein an award for the full amount claimed, should adhere to their choice of jurisdiction. This view is analogous to the rule of law that a party to whom is accorded the privilege of suing in more than one jurisdiction must choose in which court he will proceed and is prevented by such choice from pursuing his cause in the other and concurrent jurisdiction, and is in a measure analogous to the common law rule of practice by which the plaintiff who sues on two inconsistent counts in the same cause of action may be compelled by the court to elect on which count he will proceed. "The circular of the Secretary of the Treasury of November 13, 1871, seems to be in force. Therein he requests that no claim which has been submitted for adjudication to the Court of Claims shall be entertained by the accounting officers, but that the same be left for the determination of the court. "Application denied. (Signed) SIGOURNEY BUTLER, 666 Comptroller. "There is no question but that the claimant could have filed his claim in either the Court of Claims or with the accounting officers; but having elected wherein to assert his rights, it would seem in view of the circular of the Secretary of the Treasury, supra, which so far as I know has not been repealed or modified, the accounting officer should decline to consider the claim. "I am therefore of the opinion, and so decide, that this Office is without jurisdiction to entertain the claim. "As required by the act of July 31, 1894, I have the honor to report to you, for approval, disapproval, or modification the decision in this case." The Treasury circular of November 13, 1871, which was a letter addressed to the accounting officers by the Secretary of the Treasury, is as follows: "My attention having been called to the fact that claims against the United States which have been submitted for adjudication to the Court of Claims are sometimes brought before the accounting officers of the Treasury for hearing and determination by them after such submission, I respectfully request that no such claim shall hereafter be entertained by the accounting officers, but that the same be left for the determination of the Court of Claims." * * * It is the well-settled practice of the accounting officers to not entertain claims against the United States in the two following classes of cases: 1. After a claim has been prosecuted to judgment in a court and this for the reason that after the judgment is rendered the claim has been adjudicated, subject only to appeal to the proper court, and the accounting officers are charged with no duty connected therewith except the formality of stating an account for its payment from the proper appropriation. It was in a case of this class that the decision of Second Comptroller Butler, quoted by the Auditor, was rendered. 2. In cases where the claimant is prosecuting the same claim in the courts. See 8 Comp. Dec., 841. The refusal to entertain a claim in this second class is based upon the circular of November 13, 1871, supra, or rather upon the principle broadly stated in Wells on Jurisdiction of Courts (sec. 156) as follows: "The leading general principle as to courts of concurrent or coordinate jurisdiction is, that whichever court of those having jurisdiction first acquires possession of a cause will retain it throughout." It was said by the Supreme Court in Astiazaran v. Santa Rita Mining Co. (148 U. S., 80, 83) as to the application of this principle "This case is one of those jurisdiction of which has been committed to a particular tribunal, and which can not, therefore, at least while proceedings are pending before that tribunal, be taken up and decided by any other." And in the case of Barnstable Bank v. Burrell (119 Mass., 487) the court said: "But in cases like this (in which no attachment or custody of property is necessary), if the parties apply to distinct tribunals of concurrent jurisdiction in the same State, that tribunal to which the first application is duly made acquires exclusive jurisdiction of the subject, and so long as proceedings thereon are pending before it, no action can be had by any other." Before presenting his claim to the Auditor, Lieutenant Sellers, with the consent of the court, discontinued his suit in the Court of Claims. It is very clear that he had no right to have the claim settled by the accounting officers before the discontinuance, and whether or not he has now the right depends upon the effect of the discontinuance, i. e., whether the claim can be held as now in any way pending before the Court of Claims. It is laid down in Am. and Eng. Enc. of Law, 677"A discontinuance, if not aided, ends the particular action. "It does not bar a subsequent action for the same cause.' In Gibson v. Gibson (20 Pa. St., 9) it was said of a discon tinuance "It is neither an adjudication of his cause by the proper tribunal nor an acknowledgment by himself that his claim is not well founded." and in Thurman v. James (48 Mo., 236) "In practice a dismissal and a discontinuance amount to the same thing, and are but different words employed to convey the same idea, namely, that the cause is sent out of court." The entry of a judgment of discontinuance did not admit that the plaintiff had no cause of action; it was not a release, and it does not preclude the commencement of another suit. There was no trial or decision by the court upon the merits of the claim, and the claim is not now pending before the court. The suit having been discontinued in the Court of Claims, as already stated, and thereafter the claim having been presented to the Auditor, where it is now pending, I am of opinion that it becomes his duty "to receive and examine it," as required by section 7, act of July 31, 1894 (28 Stat., 206), the same in all respects as if said suit had never been brought in the Court of Claims. The Auditor's decision is disapproved. APPROPRIATION FOR PURCHASE OF SUBMARINE TORPEDO BOATS. The appropriation made in the act of April 27, 1904, for the purchase of submarine torpedo boats is an annual and not a permanent one. (Comptroller Tracewell to the Secretary of the Navy, March 15, 1905.) I am in receipt of your letter, dated March 6, 1905, wherein my decision is requested on a matter which you present as follows: "The act making appropriations for the naval service for the fiscal year ending June 30, 1904, approved March 3, 1903 (32 Stat., 1202), and the act approved April 27, 1904 (33 Stat., 351), contain provisions authorizing the Secretary of the Navy to cause tests to be made, by comparison or competition, or both, of subsurface or submarine torpedo boats, and after such tests have been made to contract for such boats ‘in a manner that will best advance the interests of the United States in torpedo or submarine warfare.' The language of the act of April 27, 1904, is as follows: "The Secretary of the Navy is hereby authorized, in his discretion, to contract for or purchase subsurface or submarine torpedo boats in the aggregate of, but not exceeding, eight hundred and fifty thousand dollars: Provided, That prior to said purchase or contract for said boats any American inventor or owner of a subsurface or submarine torpedo boat may give reasonable notice and have his, her, or its subsurface or submarine torpedo boat tested by comparison or competition, or both, with a Government subsurface or submarine torpedo boat or any private competitor, provided there be any such, and thereupon the board appointed for conducting such tests shall report the result of said competition or comparison, together with its recommendations, to the Secretary of the Navy, who may purchase or contract for subsurface or submarine torpedo boats in a manner that will best advance the interests of the United States in torpedo or submarine warfare: And provided further, That before any subsurface or submarine torpedo boat is purchased or contracted for it shall be accepted by the Navy Department as 28007 Vol. 11-05-34 |