Hodges v. United States

• Decision Date: 07 April 1953
• Docket Number: No. 365-52.,365-52.
• Citation: 111 F. Supp. 268
• Parties: HODGES v. UNITED STATES.
• Court: U.S. Claims Court

111 F. Supp. 268

HODGES v. UNITED STATES.

No. 365-52.

United States Court of Claims.

April 7, 1953.

John K. Pickens, Washington, D. C., Jerry N. Griffin, Washington, D. C., on the brief, for plaintiff.

Thomas O. Fleming, Washington, D. C., with whom was Holmes Baldridge, Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.

WHITAKER, Judge.

This case is before us on defendant's motion to dismiss plaintiff's petition. That motion disregards the naming of the United States Army as the defendant, instead of the United States, and is grounded on, first, the bar of the statute of limitations, and, second, the lack of authority to bind the United States of those alleged to have requisitioned plaintiff's property.

Plaintiff alleges in his petition that a lieutenant of the Panay guerrillas, one Abelardo Muyco, alleged to be the commanding officer of the guerrillas in the Passi Sector, negotiated with him for the surrender to him of his cattle ranch and such livestock, feed and materials thereon as the guerrillas might need, and that he did surrender his ranch, and that the guerrillas took charge of it. During their occupancy of the ranch, plaintiff alleges, some of his livestock was taken, for which receipts were given, others were taken by other guerrilla units without receipts, and still others were destroyed through negligence. Plaintiff claims compensation therefor in the amount of 262,179.90 pesos. He said that 4,700.00 pesos of this amount was allowed him by the Claims Service Philippine-Ryukyus Command, but he refused to accept it.

Plaintiff alleges that the foregoing goods were taken from September 1942 to March 1945, inclusive. Defendant says the claim is therefore barred by the statute of limitations, since the petition was not filed until July 16, 1952. Defendant says the statutory period expired three years after July 5, 1945, the date of the announcement of the Commanding General of the United States Army in the Philippines of the liberation of the Philippines from Japanese occupation, or six years from the time the cause of action accrued, whichever is later.

In Marcos v. United States, 106 F. Supp. 172, 122 Ct.Cl. 641, we held that the statute of limitations as to claimants in the Philippines was tolled until September 2, 1945, the date of the signing of the formal surrender of the Japanese forces, and that a claimant had six years thereafter within which to begin his suit. Both defendant and plaintiff—as well as the writer of this opinion—are dissatisfied with this holding, but we are disposed to adhere to it.

Plaintiff, however, says that his letter of April 30, 1951 to this court was the commencement of his suit on his claim, and, that letter having been filed within six years after September 2, 1945, his claim is not barred.

This letter was not the commencement of his suit. In it he says he had filed with the Adjutant General in Manila, Philippine Islands, an appeal on his claim, evidently from the action of the Claims Service, Philippine-Ryukyus Command, and that someone in the Claims Service informed him that his claim had been forwarded to the Court of Claims in Washington. With the letter to us he enclosed "a certified copy of the claim and appeal for your consideration." He closes his letter by saying, "I trust that you act favorably on my case * * *."

This court has no jurisdiction over appeals from the Claims Service, Philippine-Ryukyus Command. A claimant such as plaintiff can invoke the jurisdiction of this court only by filing an original petition herein. No original petition was filed until July 16, 1952.

We may grant, arguendo, that plaintiff's letter of April 30, 1951 might have been treated as the filing of a petition, but, in fact, it was not so treated. Instead, the clerk of the court declined to file it or to file the enclosed papers, and returned the papers to plaintiff. Having declined to file plaintiff's letter, the Attorney General was not notified that plaintiff was bringing suit on the claim and was not summoned to appear and answer. The Attorney General was not notified of plaintiff's claim, or of a suit on it, until after the filing of the petition on July 16, 1952.

The purpose of a statute of limitations, of course, is to notify the adverse party within the prescribed time of the intention to sue on a claim, accompanied by the actual initiation of the suit. This is to apprise him of the necessity of keeping his records intact and his witnesses available. Plaintiff in this case did not take the action required to cause this court to give notice to the Attorney General, and, hence, the Attorney General was not apprised within the required time of the pendency of plaintiff's suit, nor was he later notified that one had been commenced within the required time.

The purpose of the statute, therefore, has not been served. Notice to the Court of Claims, of course, is not notice to the United States. The notice required is a notice to defend the suit. The Court of Claims does not defend suits, and, hence, notice to it does not suffice, unless the notice is such as to require it to notify the Attorney General. Since what the letter of April 30, 1951 enclosed was an appeal to the Adjutant General in Manila, and was not a petition to this court, and because it did not otherwise comply with our rules relative to petitions, the clerk was under no duty to file it and give notice of its filing to the Attorney General.

The result is the Attorney General was not notified of plaintiff's claim and the institution of a suit on it until long after the statute had run. We are of opinion plaintiff's claim is barred by the statute of limitations.

But this case presents a problem much more far-reaching than the question of the statute of limitations, and that is the authority of an officer of the Army of the United States to bind the Government to pay for property requisitioned by him. This is the defendant's second defense.

The officer in this case was a subordinate officer, of the lowest rank, in a guerrilla band, not a regularly organized part of the Philippine Army, and not recognized as a part of that Army until after the property in question was requisitioned. There is no allegation that he had any authority to bind the United States to pay for the property requisitioned by him, or by him contracted for, and there is every indication that he did not have such authority. See Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 92 L.Ed. 10.

Barring an exceptional case, the United States is not liable for property requisitioned by the military forces unless authority to requisition it had been given the requisitioning officer beforehand, or unless the act of requisition was later ratified. This statement hardly needs the citation of supporting authority, but such authority is found in the case of United States v. North American Transportation & Trading Co., 253 U.S. 330, 333-334, 40 S.Ct. 518, 64 L. Ed. 935.

In that case General Randall, United States Army, commanding the Department of Alaska, took for an army post a large tract of public land on which the North American Company had a valuable mining claim. Buildings were erected on the claim and the owner was dispossessed.

General Randall occupied the land on July 1, 1900 without previous authorization by the Secretary of War or the President. Subsequently on December 8, 1900 the President reserved the tract from sale and set it aside as a military reservation. On December 20, 1900 the Secretary of War announced it as a public reservation under the control of the War Department.

The United States contended that the right of action was barred by the six-year statute, but this court held the property was not taken by the United States on July 1, 1900, and not until December 8, 1900. The Supreme Court agreed. It said, 253 U.S. at pages 333-334, 40 S.Ct. at page 519:

"When the government, without instituting condemnation proceedings, appropriates for a public use under legislative authority private property to which it asserts no title, it impliedly promises to pay therefor. United States v. Great Falls Manufacturing Co., 112 U.S. 645, 5 S.Ct. 306, 28 L. Ed. 846; United States v. Lynah, 188 U.S. 445, 462, 465, 23 S.Ct. 349, 47 L. Ed. 539; United States v. Kelly, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Cress, 243 U.S. 316, 329, 37 S.Ct. 380, 61 L.Ed. 746. But, although Congress may have conferred upon the Executive Department power to take land for a given purpose, the government will not be deemed to have so appropriated private property, merely because some officer thereafter takes possession of it with a view to effectuating the general purpose of Congress. See Ball Engineering Co. v. J. G. White & Co., 250 U.S. 46, 54-57, 39 S.Ct. 393, 63 L.Ed. 835. In order that the government shall be liable it must appear that the officer who has physically taken possession of the property was duly authorized so to do, either directly by Congress or by the official upon whom Congess conferred the power.

"The Acts of March 3, 1899, c. 423, 30 Stat. 1064, 1070, and of May 26, 1900, c. 586, 31 Stat. 205, 213, making appropriations for barracks and quarters for troops, furnish sufficient authorization from Congress to take land for such purposes, so that the difficulty encountered by the claimant in Hooe v. United States, 218 U.S. 322, 31 S. Ct. 85, 54 L.Ed. 1055, does not exist here. But the power granted by those acts was conferred upon the Secretary of War. Act Aug. 1, 1888, c. 728, § 1, 25 Stat. 357 * * * Act Aug. 18, 1890, c. 797, § 1, 26 Stat. 316 * * *. It was for him to determine whether the army post should be established and what land should be taken therefor. Compare Nahant v. United States, 1 Cir., 136 F. 273, 69

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