BAlta ".UNITED' STATES.
858
BAUK fl. UNITED Si'ATES.
(Oircuit OO'Urt, D; Oalifornia. March II, 1888.) OOURm- JURISDICTION '"CRACTS. CLAIMS AGAINST UNITED STATE8;"" SURVEYING CoN-
The act of Congress March 3, 1887, (24 St. 505,) provides that where the amount in controversy is between $1,000 and $10,000 the circuit courts shall have con· current jurisdiction with the court of claims of "all claims * * * founded UpOD, * * * any law ofcongrells, * * * or upon any contract, express or implied, with the governllIent of the United States,» etc.; "claims which have heretofore been rejected or reported on adversely 'by any court, department, or commission authorized to hear and determine the same" being excepted.. The complaint.upon a surveying contract set out that the surveror general' of California had approved the field-notes. and certified them, as well as the performance of the'work, but that before he forwarded his report to , 'Y,ashington, D. C., he w,as instructed by the .commissioner of the general land-office to proceed no further in the matter. Under the terms of the agree· m1mt, this report should have gone to the said commissioner, and, if appro-,ed :by him, been then referred to. the auditor for final allowance and payment. ." Held, on demurrer to complaint, that the claim had not been "heretofore rejected o1"reported on advetsely," within the meaning of the act, and that the circuit court, sitting in California, had jurisdiction, the amount sued for baing'between $1,000 and $10,000.
At Law.
On demurrer to compll\int.
J. C. Carey, U. S. Atty.,,for defendant.
J., (orally.) This is a suit on one of these surveying contracts,-a civil suit to recovell the amount due on one of these contracts, the persons connected with which are under indictment in this court for conspiring to defraud the government. The point is made and urged, that the court has no jurisdiction, for the reason that this particular claim has already been passed upon by the land department at Washington, and rejected; and that it so appears upon the face of the complaint. I do not so read it. The contract is set out in full, and in connection with the other allegations in the complaint, I think, a good cause of action is stated. The objection made to the jurisdi,ction is, that the case stated not within the terms of the act, as it appears to have been considered and rejected by the proper department. The act of March 3,1887, conferred jurisdiction on the court of claims to hear and determine "all claims * * * founded upon **. * any law of congress, * * * or upon any contract, express or implied, with the government of the United 8tates,"e1o., provided nothing in the act shall be construed to give jurisdiction to hear and determine "claims which have heretofore been rejected, or reported on adversely by any court, department, or commission authorized to hear and determine th,e Sl1Dfe.." ,24 St. 505. Section 3 gives concurrent jurisdiction to the circuit Goti'rts .over all such claiws wherein the aIIlou,ltclaimedexceeds 81,000,andis,less than $10,000. I am not fully satisfied what the exception as to a determination or reporting against by a department is inv.34F.no.5-23
851
FEDERAL "REPORTER. .,
tended to embrace. But giving the provision its broadest signification, it only to claims upon and rejected by the department, that is to say, before the passage of the act; and that does not include the(contract'setwut in the complaint, in this action. The complaint does not say that the claim has been passed upon by the de'l'he surveyor general was, aeto. an9- certify to ,field-notes, and certify to tboeamount due, ' W .then his approval and certificate were to be senttoWashington,where'Jt 'Was tl> be considered 'QY' the commisof tlie .land--om,ce fpr: apd,then referred to the audite?l"fof,final so that the ,auditor was the mUI;l ..-; the surapproved and, certified to the field-notes lD the proper certifiedthattbework was perthe is to hIS mone:y;, but.· that,before.heforwl!J.'d,ed hIS repoJ;1i, ,tpWashmgton, he received orders' from tlle;:eoInttJissioriel'.of the generalland-office not tQ &*; 'it, That in consequeDce'0fthesepositiveanq distinct orders, it had never been forwarded to Washington, consequently the"department at Washington whose duty it was to pass upon the claim never did consider and pass upon it, and it never was determined' or rejected. On the contrary, by the action of the commissioner, consideration 'was prevented, .and it was not determined or rejected by the proper department herore the passage of the act or at any time. I do not think it comes within the proviso, thate:x.cluded:from jurisdiction ,claims 'e heretofore" determined or rejected bythedepartmenll j giving the· $tatute the broadest signification.. I do not tbink jt: comes within ·the;pl1rview of that prohibitory clause, and the complaint states a good cause of action over which the court has jurisdiction; i:, " .The detDurl'8r ,must therefore- be overruled, and it is 80 ordered. "/',1 1;1,;
i,
,,1 . · . _: ..! : ."
i!
STA1$S. (Oircuit · ': · " ;' I. II;.' ",
March 1I,1888.l !-'I" I
At Law. 'On demurrer to complaint. "
/;
;'SAWY'ER.'J:, (bt'all.y;) The plaintiff inthis case is on&of the parties, also. embraced in 'the 'indictments. Her {Jut ·two contracts similar to that set out in Ba1U1"s,Case, ante. 353., andtbeyrdo not appear, to hav:ebeen passed: upon by One of tlWpl is approved b1.'. Surveyor Gene:r1M BrqWII.and the. other by $urv.eyorGeneraIHammond, it does n,btBIipe,.aJ:, dep!'riibe'ntever deterInl,n:edot pas,sed uponeitlie,r' ' or reported $ganist them. The 8Jlegatlon is such as to make out a good cause of action,and the same order will 'be made in this case as in the other. ':'rhe demurrer will b,e overruled, with leave to answer in 30 days.