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the National Recovery Act, and, by act of May 25, 1934 (48 Stat. 804), to attorneys employed by the Attorney General for prosecution of cases involving hydroelectric power, navigation, or water rights upon the New and Kanawha Rivers. For other exceptions to this section, see 840, post.

707. Prosecution by members of the National Guard of the District of Columbia.- * * Provided, That members of the National Guard of the District of Columbia who receive compensation for their services as such shall not be held or construed to be officers of the United States, or persons holding any place of trust or profit, or discharging any official function under or in connection with any executive department of the Government of the United States within the provisions of section fifty-four hundred and ninety-eight of the Revised Statutes of the United States: * Sec. 1, act of Mar. 1, 1901

(31 Stat. 844); 18 U. S. C. 198a.

R. S. 5498 is incorporated in sec. 109, Criminal Code, 840, post.

708. Set-off.-That when any final judgment recovered against the United States duly allowed by legal authority shall be presented to the Comptroller General of the United States for payment, and the plaintiff therein shall be indebted to the United States in any manner, whether as principal or surety, it shall be the duty of the Comptroller General of the United States to withhold payment of an amount of such judgment equal to the debt thus due to the United States; and if such plaintiff assents to such set-off, and discharges his judgment or an amount thereof equal to said debt, the Comptroller General of the United States shall execute a discharge of the debt due from the plaintiff to the United States. But if such plaintiff denies his indebtedness to the United States, or refuses to consent to the set-off then the Comptroller General of the United States shall withhold payment of such further amount of such judgment as in his opinion will be sufficient to cover all legal charges and costs in prosecuting the debt of the United States to final judgment. And if such debt is not already in suit, it shall be the duty of the Comptroller General of the United States to cause legal proceedings to be immediately commenced to enforce the same, and to cause the same to be prosecuted to final judgment with all reasonable dispatch. And if in such action, judgment shall be rendered against the United States, or the amount recovered for debt and costs shall be less than the amount so withheld as before provided, the balance shall then be paid over to such plaintiff by such Comptroller General of the United States with 6 per centum interest thereon for the time it has been withheld from the plaintiff. Act of Mar. 3, 1875 (18 Stat. 481); sec. 13, Title II, act of Mar. 3, 1933 (47 Stat. 1516); 31 U. S. C. 227.

Notes of Decisions

In general. As the effect of the act of | ernment. The amendment is not retroactive, 1875 was to take away the discretion which and interest on duly allowed claims other accounting officers previously had in exer- than final judgments is allowable up to the cising the right of set-off and to require them date of the amendment. Whitbeck, Receiver, to make set-offs in respect to both judgments v. U. S. (1933), 77 Ct. Cl. 309. and claims, so now the effect of the amendment of March 3, 1933 (47 Stat. 1516), is to restore the discretion of exercising the setoff right with respect to claims and to limit the duty of making set-offs to judgments. (1933) 37 Op. Atty. Gen. 215.

Interest. This section as amended authorizes interest only on "final judgments" against the Government, payment of which has been withheld to apply as set-off in payment of alleged claims in favor of the Gov

The amendment of this section limiting, to final judgments only. interest on allowed claims against the Government the payment of which has been erroneously withheld to apply as a set-off in payment of claims in favor of the Government, is not retroactive, and interest is recoverable on a duly allowed claim other than a judgment up to the enactment of such amendment, March 3, 1933.

The Act of March 3, 1933, 47 Stat. 1489. did not repeal but merely amended the Act

of March 3, 1875. The plaintiff's claim for interest is a claim arising under the 1875 Act, and is therefore within the jurisdiction of the court.

A statute should not be given a retrospective effect unless such clearly and unequivocally appears to have been the legislative intent in its enactment. Chicago, I. & L. Ry. v. U. S. (1933), 78 Ct. Cl. 96.

recover not only the amount of its claim but also interest thereon in accordance with this section. Allis-Chalmers Mfg. Co. v. U. S. (1934), 79 Ct. Cl. 453.

Where United States wrongfully withheld from seller payments for merchandise sold to War and Navy Departments to offset amount due against claimed but nonexistent indebtedness due United States, seller held entitled to interest on amounts due at 6 percent per annum during time payments were wrongfully withheld (31 U. S. C. A. 227). Reynolds Tobacco Co. v. U. S. (1936), 82 Ct. Cl. 545.

Where the Comptroller General, under the act of March 3, 1875, as amended, withheld payment of money due a contractor under certain contracts with the Government to satisfy an erroneous claim against the contractor under another contract with the Government, the contractor is entitled to interest on the money so withheld from him. Edwards v. U. S. (1937), 84 Ct. Cl. 615.

Interest on an allowed claim against the Government, other than a judgment, payment of which has been withheld by the Comptroller General as a set-off against an erroneous claim by the Government, is allowable only up to March 3, 1933. Detroit, T. & I. R. R. Co. v. U. S. (1934), 79 Ct. Cl. 227. Where the Comptroller General refuses pay ment of a claim admittedly due the contractor under one contract, setting off against it a claimed indebtedness of the contractor to the Government under another contract, which claim of indebtedness is held invalid by the court, the contractor is entitled to 708a. Contract claims; foreign nationals.-That the Secretary of War, through such agency as he may designate or establish is empowered, upon such terms as he or it may determine to be in the interest of the United States, to make equitable and fair adjustments and agreements, upon the termination or in settlement or readjustment of agreements or arrangements entered into with any foreign government or governments or nationals thereof, prior to November twelfth, nineteen hundred and eighteen, for the furnishing to the American Expeditionary Forces or otherwise for War purposes of supplies, materials, facilities, services, or the use of property, or for the furnishing of any thereof by the United States to any foreign government or governments, whether or not such agreements or arrangements have been entered into in accordance with applicable statutory provisions; and the other provisions of this Act shall not be applicable to such adjustments. Sec. 3, act of Mar. 2, 1919 (40 Stat. 1273).

Notes of Decisions

Claims within.-The agreement made be- | purview of this section. The claim arising tween the representative of the United States out of the agreement to adopt as a basis for and the Netherlands Government concerning ascertaining just compensation the costs of the price to be paid to the Netherlands Gov- the supplies in lieu of the market value is ernment for war materials taken over by the within the scope of this section. (1932) 36 United States in 1917, which were to be fur- Op. Atty. Gen. 547. nished to a foreign government, is within the

708b. Death or injury; foreign nationals. That when any act of omission of any officer, employee, or agent of the Government of the United States, including all officers, enlisted men and employees of the Army, Navy, and Marine Corps, results in the personal injury or death of any person, not an American national, in any foreign country in which the United States exercises privileges of extraterritoriality, the Secretary of State may consider, adjust, and determine any claim, arising after the passage of this Act, for the damage occasioned by such injury or death in an amount not in excess of $1,500, United States currency, in any one case, and such amount as may be found to be due to any claimant shall be certified to Congress as a legal claim for payment out of appropriations that may be made by Congress therefor, together with a brief statement of the character of each claim, the amount claimed, and the amount allowed: Provided, That this authorization shall not apply to cases of per

sons in the employ of the United States: Provided further, That no claim shall be considered under this Act by the Secretary of State unless presented to him within one year from the date of the accrual of said claim: And provided further, That acceptance by any claimant of the amount determined under the provisions of this Act shall be deemed to be in full settlement of such claim against the Government of the United States. Act of Feb. 13, 1936 (49 Stat. 1138); 31 U. S. C. 224a.

Pro

709. Private property; damage by operations of the Army.vided, That hereafter the Secretary of War is authorized to consider, ascertain, adjust, and determine the amounts due on all claims for damages to and loss of private property when the amount of the claim does not exceed the sum of one thousand dollars, occasioned by heavy gun fire and target practice of troops, and for damages to vessels, wharves, and other private property, found to be due to maneuvers or other military operations for which the Government is responsible, and report the amounts so ascertained and determined to be due the claimants to Congress at each session thereof through the Treasury Department for payment as legal claims out of appropriations that may be made by Congress therefor. Sec. 1, act of Aug. 24, 1912 (37 Stat. 586); 5 U. S. C. 208.

For payment of claims [including claims of military and civilian personnel in and under the War Department] not exceeding $500 each in amount for damages to or loss of private property incident to the training, practice, operation, or maintenance of the Army that have accrued, or may hereafter accrue, from time to time, $3,000: Provided, That settlement of such claims shall be made by the General Accounting Office, upon the approval and recommendation of the Secretary of War, where the amount of damages has been ascertained by the War Department, and payment thereof will be accepted by the owners of the property in full satisfaction of such damages. Act of Feb. 28, 1929 (45 Stat. 1354), making appropriations for support of War Department; 31 U. S. C. 223. The compilers of the United States Code have not followed the recommendation of the War Department (Op. J. A. G. 010.3, Nov. 12, 1929, p. 14) that this provision, based on War Department Appropriation Act of February 28, 1929 (45 Stat. 1354), as repeated in subsequent appropriation acts and modified as indicated in the act for fiscal year 1937 (49 Stat. 1284), 31 U. S. C. 223, be omitted from the Code as temporary. It has been eliminated from 5 U. S. C. 209 but is retained in 31 U. S. C. 223.

710. Private property; damage by dredging operations.-That the Court of Claims shall have jurisdiction to hear and determine claims for damages to oyster growers upon private or leased lands or bottoms arising from dredging operations and use of other machinery and equipment in making such improvements: Provided, That suits shall be instituted within one year after such operations shall have terminated. Sec. 13, act of Aug. 30, 1935 (49 Stat. 1049); 28 U. S. C. 250a.

* for settle

711. Private property; damage by operation of aircraft.-* ment of claims (not exceeding $250 each) for damages to persons and private property resulting from the operation of aircraft at home and abroad when each claim is substantiated by a survey report of a board of officers appointed by the commanding officer of the nearest aviation post and approved by the Chief of Air Corps and the Secretary of War. * Act of Feb. 28, 1929 (45 Stat. 1362), making appropriations for the support of the War Department; 31 U. S. C. 224.

The compilers of the United States Code have not followed the recommendation of War Department (J. A. G. 010.3, Nov. 12, 1929, p. 286) that this section, based on War Department Appropriation Act of February 28, 1929 (45 Stat. 1362), and subsequent appropriation acts, 31 U. S. C. 224, be omitted from the Code as temporary.

712. Private property; damage by river and harbor operations.-That whenever any vessel belonging to or employed by the United States engaged upon river and harbor works collides with and damages another vessel, pier, or other legal structure belonging to any person or corporation, and whenever, in the prosecution of river and harbor works, an accident occurs damaging or destroying property belonging to any person or corporation, * * the Chief of Engineers shall cause an immediate examination to be made, and if, in his judgment, the facts and circumstances are such as to make the whole or any part of the damages or destruction a proper charge against the United States, the Chief of Engineers, subject to the approval of the Secretary of War, shall have authority to adjust and settle all claims for damages or destruction caused by the above-designated collisions, accidents, and so forth, in cases where the damage or expense does not exceed $500, and pay the same from the appropriation directly involved, and to report such as exceed $500 to Congress for its consideration. Sec. 4, act of June 25, 1910 (36 Stat. 676); sec. 9, act of June 5, 1920 (41 Stat. 1015); 33 U. S. C. 564.

The act of August 26, 1937 (50 Stat. 843), authorizes the Secretary of War to pay claims for damages arising from fluctuations of water levels of the Lake of the Woods, in accordance with section 3, act of May 22, 1926 (44 Stat. 617).

The first deficiency act of March 5, 1938 (52 Stat. 93), makes an appropriation for this purpose, and requires that a release in full shall be required by the Secretary of War in connection with all claims settled.

Act of April 13, 1938 (52 Stat. 215), authorizes the Secretary of War to reimburse the Chippewa Indians for flowage rights on lands bordering the Lake of the Woods.

713. Private property; damage by negligence of Government agents within scope of their employment. That when used in this Act the terms "department and establishment" and "department or establishment" mean any executive department or other independent establishment of the Government; the word "employee" shall include enlisted men in the Army, Navy, and Marine Corps. Scc. 1, act of Dec. 28, 1922 (42 Stat. 1066); 31 U. S. C. 216.

That authority is hereby conferred upon the head of each department and establishment acting on behalf of the Government of the United States to consider, ascertain, adjust, and determine any claim accruing after April 6, 1917, on account of damages to or loss of privately owned property where the amount of the claim does not exceed $1,000, caused by the negligence of any officer or employee of the Government acting within the scope of his employment. Such amount as may be found to be due to any claimant shall be certified to Congress as a legal claim for payment out of appropriations that may be made by Congress therefor, together with a brief statement of the character of each claim, the amount claimed, and the amount allowed: Provided, That no claim shall be considered by a department or other independent establishment unless presented to it within one year from the date of the accrual of said claim. Sec. 2, act of Dec. 28, 1922 (42 Stat. 1066); 31 U. S. C. 215.

That acceptance by any claimant of the amount determined under the provisions of this Act shall be deemed to be in full settlement of such claim against the Government of the United States. Sec. 3, act of Dec. 28, 1922 (42 Stat. 1066); 31 U. S. C. 217.

Notes of Decisions

Intervening cause.-Mere fact that intervention of responsible human being can be traced between defendant's wrongful act and injury complained of will not absolve defendant; general rule being that one doing wrongful act is answerable for all consequences ensuing in ordinary course of events,

though such consequences are immediately and directly brought about by intervening cause, if such intervening cause was set in motion by original wrongdoer, or was only condition through which negligent act operated to produce injurious result. Garis v. Eberling (Tenn., 1934), 71 S. W. (2d) 215;

Negligence of automobile owner, leaving car parked on incline with children playing about it, could be proximate cause of injury to child run over by car, even though another child released brake lever and thus caused car to roll downhill. Id.

(May 24,

certiorari denied by Sup. Ct. Tenn., May | enrollee who drove the truck was designated 19, 1934. to provide the transportation. 1938). 39 Op. Atty. Gen. No. 45. Subrogation. A claim covering the cost of repairing a plate-glass window presented by an insurance company which has become subrogated to the rights of the owner of the damaged property may properly be cer Measure of damage.-Section 2, act of tified to Congress under this section for ap December 28, 1922 (42 Stat. 1066), 31propriation to provide for its payment. In U. S. C. 215, is interpreted as comprehend- making the certification special attention ing "deprivation of use" no less than other should be called to the fact that it is a subitems commonly allowable as damages, but rogation claim by an insurer, and the attenonly, of course, in cases where the party de- tion of Congress should be drawn to the prived of use has sustained legally provable point involved so that it may receive dedamages on that account. (Nov. 8, 1937) liberate consideration. (1932) 36 Op. Atty. 39 Op. Atty. Gen. No. 30. Gen. 553.

Property covered.-In view of the broad purpose of this section and the uniform practice of the departments in construing same, the property of municipalities is held to be "privately owned property" within the meaning of the statute, and claims for damage there to may properly be considered, (1936) 38 Op. Atty. Gen. 514.

Scope of employment.-Whether an enrollee of the Civilian Conservation Corps was "acting within the scope of his employment" when using a Government-owned truck to transport an employee to his home depends upon whether such transportation at the particular camp was authorized by the President or other proper officer and whether the 714. Private property; loss or damage in the military service of the United States. Every person who sustains damage by the capture or destruction by an enemy, or by the abandonment or destruction by the order of the commanding general, the commanding officer, or quartermaster, of any horse, mule, ox, wagon, cart, sleigh, harness, steamboat or other vessel, railroad engine, or railroad car, while such property is in the military service, either by impressment or contract; or who sustains damage by the death or abandonment and loss of any horse, mule, or ox, while in the service, in consequence of the failure on the part of the United States to furnish the same with sufficient forage, or whose horse, mule, ox, wagon, cart, boat, sleigh, harness, vessel, railroad engine, or railroad car, is lost or destroyed by unavoidable accident while such property is in the service, shall be allowed and paid the value thereof at the time when such property was taken into the service, except in cases where the risk to which the property would be exposed was agreed to be incurred by the owner: Provided, It ap pears that such loss, capture, abandonment, destruction, or death was without any fault or negligence on the part of the owner of the property, and while the property was actually employed in the service of the United States. R. S. 3483; 31 U. S. C. 209.

Whenever any horse is condemned by a board of officers, on account of his unfitness for service, in consequence of the Government failing to supply forage, such horse and his equipage shall be allowed and paid for: Provided, It shall be proven, by satisfactory evidence, whether oral or written, that the condemned horse and the equipage were turned over to a quartermaster of the Army, whether any receipt therefor was given and produced, or not. R. S. 3485; 31 U. S. C. 211.

714a. Private property; damage by field exercises.

for settlement

of claims (not exceeding $500 each) for damages to or loss of private property resulting from such exercises that have accrued or may hereafter accrue, when payment thereof will be accepted by the owners of the property in full satisfaction of such damages, and each claim is substantiated by a report of a board of officers appointed by the commanding officer of the troops engaged, and is approved by the Secretary of War, whose action thereon shall be conclusive,

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