Pope v. United States

• Decision Date: 03 April 1944
• Docket Number: No. 45704.,45704.
• Citation: 100 Ct. Cl. 375,53 F. Supp. 570
• Parties: POPE v. UNITED STATES.
• Court: U.S. Claims Court

53 F. Supp. 570

100 Ct. Cl. 375

POPE v. UNITED STATES.

No. 45704.

Court of Claims.

January 3, 1944.

Writ of Certiorari Granted April 3, 1944.

Herman J. Galloway and George R. Shields, both of Washington, D. C., for plaintiff.

Francis M. Shea, Asst. Atty. Gen. (Philip Mechem, of Washington, D. C., on the brief), for defendant.

Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, and MADDEN, Judges.

Writ of Certiorari Granted April 3, 1944. See 64 S.Ct. 846.

MADDEN, Judge.

This suit is here by virtue of a special act of Congress, the text of which is quoted later in this opinion. The facts preceding the enactment of the special act were as follows:

The plaintiff made a contract with the Government dated December 3, 1924, to construct a tunnel for the supply of water for the District of Columbia. The work was completed in 1927. The plaintiff claimed that the Government had in various ways breached the contract and he brought a suit (K-366) in this court, asking for damages in the sum of $306,825.33. The case was tried and the court rendered a judgment for the plaintiff for $45,174.46, accompanied by an opinion which dealt with the issues in the case. 76 Ct.Cl. 64. The plaintiff made several motions for new trials, which were denied. Written opinions accompanied two of the denials. 81 Ct.Cl. 658; 86 Ct.Cl. 18. The plaintiff petitioned the Supreme Court of the United States for a writ of certiorari to review this court's decision. The Supreme Court denied the petition. 303 U.S. 654, 58 S.Ct. 761, 82 L.Ed. 1114. All of the foregoing steps in the litigation were taken under the general legislation conferring jurisdiction on this court, subject to review by the Supreme Court (28 U.S.C.A. §§ 250, 288). The amount of the judgment rendered by this court in favor of the plaintiff was paid to him.

In 1942 the plaintiff secured the passage of the special act of Congress, 56 Stat. 1122, under which this suit is brought. The text of the act is as follows:

"An Act

"To confer jurisdiction upon the Court of Claims to hear, determine, and render judgment upon the claims of Allen Pope, his heirs or personal representatives, against the United States.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction be, and the same is hereby, conferred upon the Court of Claims of the United States, notwithstanding any prior determination, any statute of limitations, release, or prior acceptance of partial allowance, to hear, determine, and render judgment upon the claims of Allen Pope, his heirs or personal representatives, against the United States, as described and in the manner set out in section 2 hereof, which claims arise out of the construction by him of a tunnel for the second high service of the water supply in the District of Columbia.

"Sec. 2. The Court of Claims is hereby directed to determine and render judgment at contract rates upon the claims of the said Allen Pope, his heirs or personal representatives, for certain work performed for which he has not been paid, but of which the Government has received the use and benefit; namely, for the excavation and concrete work found by the court to have been performed by the said Pope in complying with certain orders of the contracting officer, whereby the plans for the work were so changed as to lower the upper `B' or `pay' line three inches, and as to omit the timber lagging from the side walls of the tunnel; and for the work of excavating materials which caved in over the tunnel arch and for filling such caved-in spaces with dry packing and grout, as directed by the contracting officer, the amount of dry packing to be determined by the liquid method as described by the court and based on the volume of grout actually used, and the amount of grout to be as determined by the court's previous findings based on the number of bags of cement used in the grout actually pumped into the dry packing.

"Sec. 3. Any suit brought under the provisions of this Act shall be instituted within one year from the date of the approval hereof, and the court shall consider as evidence in such suit any or all evidence heretofore taken by either party in the case of Allen Pope against the United States, numbered K-366, in the Court of Claims, together with any additional evidence which may be taken.

"Sec. 4. From any decision or judgment rendered in any suit presented under the authority of this Act, a writ of certiorari to the Supreme Court of the United States may be applied for by either party thereto, as is provided by law in other cases.

"Approved, February 27, 1942."

It is apparent that the suit which is now before us has already been litigated to a final judgment in this court, under the court's general jurisdiction, and the right to seek a review of the judgment in the Supreme Court, which is also granted by a statute of general application, has already been exercised and the review denied. The plaintiff seeks to justify his attempt to obtain a second and more favorable judgment from a court which has already heard, determined, and rendered final judgment in the same litigation, by pointing to the special act.

The history recited above presents a problem as to the power of Congress, under the Constitution, to do what the special act attempts to do. The text of the special act is quoted above. A rereading of Section 2 of the act will show that the task which the court is directed to perform is a small and unimportant one. It is directed to refer to its previous findings, take certain cubic measurements and certain numbers of bags of cement which are recited there by reference, multiply those figures by the several unit prices stipulated in the contract for the several kinds of work, add the results, and render judgment for the plaintiff for the sum. If this reading of Section 2 is correct, not only does the special act purport to confer upon the plaintiff the unusual privilege of litigating the same case a second time in a court which once finally decided it, and applying a second time for a review in the Supreme Court of the United States, which once considered and denied such a review. The special act also purports to decide the questions of law which were in the case upon its former trial and would, but for the act, be in it now, and to decide all questions of fact except certain simple computations. Thus a second serious question as to the constitutional power of Congress is presented.

The Government urges that we avoid the constitutional issue by construing the act to mean only that a new trial is granted to the plaintiff by the act, in which new trial the court will be free to decide, in the usual manner of a court, the questions of law and fact involved in the case. Counsel for the plaintiff, though in their original brief they said, as to one item of the claim "The Act appears mandatory that such cost be now allowed," and expressed, though less peremptorily, a similar view as to other items, seemed to take the position at the oral argument and in their final brief that the court could, under the act, exercise a considerable power of decision if it would take jurisdiction of the case.

While we recognize that a court should make every proper effort to give to a statute a construction which keeps it clear of serious constitutional questions, we are unable to so construe the special act. We think that the language of Section 2 is plain, and is, as the plaintiff originally contended, mandatory as to how the case must be decided if the court undertakes the jurisdiction which the act purports to confer. We are not willing to distort the plain meaning of language, for the purpose of evading a troublesome question. We therefore undertake the question as to whether Congress can effectively direct this court to again decide this case, which it has once finally decided under its general jurisdiction, and to decide it for the plaintiff, and give him a judgment for an amount which simple computation based upon data referred to in the special act, will produce.

We refer first to United States v. Klein, 13 Wall. 128, 129, 20 L.Ed. 519. Under a general statute of 1863, 12 Stat. 820, and Presidential proclamations issued pursuant thereto, Klein, by virtue of his oath of allegiance and a resulting Presidential pardon, was entitled to sue in this court for property captured by the Union Army during the Civil War. He did so sue and recovered a judgment. The Government appealed the case to the Supreme Court. While the appeal was pending, Congress in 1870, 16 Stat. 235, passed an act providing that no pardon should be admissible to establish any claim against the United States, and that when any pardon had been granted to a person suing under the act of 1863, which pardon recited that the recipient "took part in the late rebellion" and which pardon had been accepted in writing without express disclaimer, by the recipient, of guilt, the pardon should be conclusive evidence "that such person did take part in * * * the late rebellion" and upon proof of the pardon and the acceptance of it the jurisdiction of the court should cease and the court should forthwith dismiss the suit.

The Government urged that the Supreme Court should dismiss the suit. Instead, that court affirmed the judgment of this court and held the 1870 Statute unconstitutional. The opinion, delivered by Chief Justice Chase, said:

"It is evident from this statement that the denial of jurisdiction to this court, as well as to the Court of Claims, is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress. The court has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease and it is required to dismiss the cause for want of jurisdiction.

"It seems to us that this is not an exercise of the acknowledged power of Congress to make...