(40 Sup.Ct.)

Mr. Justice BRANDEIS delivered the opin-thority private property to which it asserts ion of the Court.

no title, it impliedly promises to pay therefor. United States v. Great Falls Manufacturing Co., 112 U. S. 645, 5 Sup. Ct. 306, 28 L. Ed. 846; United States v. Lynah, 188 U. S. 445,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

it in the announcement made by the Secretary must, in view of the circumstances, have meant merely that the right to compen

preserved. Furthermore, the suggestion, if sound, would not aid the government; it would result, at most, in slightly postponing the date of the legal taking. For the continued holding possession of the land after the announcement of the Secretary of War and the erection of buildings thereon by his authority was such an appropriation as would, in any event, give the right of action against the government.

462, 465, 23 Sup. Ct. 349, 47 L. Ed. 539; United States v. Kelly, 243 U. S. 316, 37 Sup. Ct. 380, 61 L. Ed. 746; United States v. Cress, 243 U. S. 316, 329, 37 Sup. Ct. 380, 61 L. Ed. | sation of the company and of any others was 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 Sup. 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 Congress conferred

the power.

[2] 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 Sup. 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 (Comp. St. 6909); Act Aug. 18, 1890, c. 797, § 1, 26 Stat. 316 (Comp. St. § 6911). It was for him to

*334

[5] Second. The company contends that it should receive, in addition to the value of the property at the time of the taking, compensa

*335

tion for the occupation and use *thereof from that date to the date of the judgment-a period of nearly 20 years, during which the company was deprived of the use of its property. This contention is based upon the decisions of many stafe courts that, upon the taking of private property for public uses, the owner is entitled to recover, besides its value at the time of the taking, interest thereon from the date on which he was deprived of its use to the date of payment. In a number of cases in the lower federal courts, also, the landowner has been permitted to recover interest from the time of the taking; but in each such case a statute had provided in some form that the condemnation should be conducted according to the laws of the state determine whether *the army post should be in which the land was situated, and under established and what land should be taken the law of the state interest was recoverable. therefor. Compare Nahant v. United States, United States v. Engeman (D. C.) 46 Fed. 136 Fed. 273, 70 C. C. A. 641, 69 L. R. A. 723; 898; Town of Hingham v. United States, 161 Id., 153 Fed. 520, 82 C. C. A. 470; (C. C.) Fed. 295, 300, 88 C. C. A. 341, 15 Ann. Cas. United States v. Certain Lands in Narragan- 105; United States v. Sargent, 162 Fed. 81, sett, R. I., 145 Fed. 654. rower to take pos- 89 C. C. A. 81; United States v. First Nasession of the company's mining claim was tional Bank (D. C.) 250 Fed. 299, Ann. Cas. not vested by law in Gen. Randall; and the 1918E, 36; United States v. Rogers, 257 Fed. Secretary of War had not, so far as appears, 397, 168 C. C. A. 437; United States v. Higheither authorized it or approved it before smith, 257 Fed. 401, 168 C. C. A. 441. These December 8, 1900. It was only after the conformity provisions, which relate only to President reserved from sale and set aside the laws of states, can have no application for military purposes the large tract of land to lands in Alaska; nor can they affect proin which the company's mining claim was in-ceedings brought in the Court of Claims. cluded that the Secretary of War took action The right to bring this suit against the which may be deemed an approval or ratification of what Gen. Randall had done. What he had done before that date having been without authority, and hence tortious, created no liability on the part of the government. Higo v. United States, 194 U. S. 315, 323, 24 Sup. Ct. 727, 48 L. Ed. 994. Since the cause of action arose after December 7, 1900, this suit was not barred by section 156 of the Judicial Code.

[3, 4] The suggestion is made that, as the President's order reserved the land "subject to any legal rights which may exist to any land within its limits," the Secretary's action thereafter was not a taking of the mining

United States in the Court of Claims is not founded upon the Fifth Amendment (Schillinger v. United States, 155 U. S. 163, 168, 15 Sup. Ct. 85, 39 L. Ed. 108; Basso v. United States, 239 U. S. 602, 36 Sup. Ct. 220, 60 L Ed. 462), but upon the existence of an implied contract entered into by the United States (Langford v. United States, 101 U. S. 341, 25 L. Ed. 1010; Bigby v. United States, 188 U. S. 400, 23 Sup. Ct. 468, 47 L. Ed. 519; Tempel v. United States, 248 U. S. 121, 129, 39 Sup. Ct. 56, 63 L. Ed. 162; United States v. Great Falls Mfg. Co., supra; United States

1 See cases collected in 15 Cyc. pp. 930, 931, and in

claim. But this clause and the reference to 10 R. C. L. p. 163.

(40 Sup.Ct.)

v. Lynah, supra); and the contract which is implied is to pay the value of property as of

*336

the date of the taking (Bauman v. Ross, *167 U. S. 548, 587, 17 Sup. Ct. 966, 42 L. Ed. 270; United States v. Honolulu Plantation Co., 122 Fed. 581, 585, 58 C. C. A. 279; Burt v. Merchants' Insurance Co., 115 Mass. 1, 14). Interest may not be added, because section 177 of the Judicial Code, re-enacting section 1091 of the Revised Statutes (Comp. St. § 1168), declares that:

"No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment

of interest."

exempts the sovereign from liability to pay interest (United States v. New York, 160 U. S. 598, 622, 16 Sup. Ct. 402, 40 L. Ed. 551). This may be the theory on which interest should be allowed in compensation proceedings; 2 and it may be that, even in the absence of the conformity provision referred to above, interest could be collected as a part of the just compensation in condemnation proceedings brought by the government. For, as suggested in United States v. Sargent, supra, such a proceeding is not a suit by the landowner to collect a claim against the United States, but an adversary proceeding in which the owner is the defendant and which the

government institutes in order to secure title to land. Mason City & Ft. Dodge R. R. Co.

See Tillson v. United States, 100 U. S. 43, v. Boynton, 204 U. S. 570, 27 Sup. Ct. 321, 51 25 L. Ed. 543.

Congress, in thus denying to the court power to award interest, adopted the common-law rule that delay or default in payment (upon which, in the absence of express agreement, the right to recover interest rests), cannot be attributed to the sovereign. United States v. North Carolina, 136 U. S. 211, 216, 10 Sup. Ct. 920, 34 L. Ed. 336. That rule had theretofore been uniformly applied in our executive departments except where statutes provided otherwise. United States v. Sherman, 98 U. S. 565, 567-568, 25 L. Ed. 235. So rigorously is the rule applied that, in the adjustment of mutual claims between an individual and the government, the latter has been held entitled to interest on its credits although relieved from the payment of interest on the charges against it. United States v. Verdier, 164 U. S. 213, 218, 219, 17 Sup. Ct. 42, 41 L. Ed. 407. This denial of interest, like the refusal to tax costs against the United States in favor of the prevailing party (Stanley v. Schwalby, 162 U. S. 255, 272, 16 Sup. Ct. 754, 40 L. Ed. 960; Pine River Logging Co. v. United States, 186 U. S. 279, 296, 22 Sup. Ct. 920, 46 L. Ed. 1164), and the refusal to hold the United States liable for torts committed by its officers and agents in the ordinary course of business (Crozier v. Krupp, 224 U. S. 290, 32 Sup. Ct. 488, 56 L. Ed. 771), are hardships from which, with rare exceptions (William Cramp & Sons, etc., v. Curtis Turbine Co., 246 U. S. 28, 40-41, 38 Sup. Ct. 271, 62 L. Ed. 560), Congress has been unwilling to relieve those who either voluntarily deal with the government or are otherwise affected by its acts.

*337

L. Ed. 629. On the other hand, this suit brought in the Court of Claims is a very different proceeding. It is an action of contract to recover money which the United States is assumed to have promised to pay; and the assumed promise was to pay the value at the time of the taking. The suit is in effect an action on two counts-one for the value of the mining claim; the other for use and occupation after December 8, 1900, at the rate of $7,500 per year. If the company had brought the suit immediately after the taking, it clearly could not have recovered any amount for use and occupation; for a plaintiff suing in

*338

contract *can recover only on a cause of action existing at the time the suit was brought. The loss to the company of the use of $23,800, which is found to be the value of the mining claim when it was taken nearly 20 years ago, must be deemed to be due in part to its delay in instituting the suit, and in part to the delays of litigation, for which it may have been | largely responsible. But as, in either event, the loss of the use of the money results from the failure to collect sooner a claim held to have accrued when the company's property was taken, that which the company seeks to recover is, in substance, interest, and that Congress has denied to the Court of Claims power to allow.

[7] Furthermore, if it is not interest which the company seeks, the facts found fail to supply the basis on which any claim in addition to that for the value of the property should rest. The petition states that the United States is indebted to claimant in addition to the $100,000, alleged to be the value [6] The company argues that interest is of the property, the further sum of $7,500 per allowed in condemnation proceedings, not annum for the use and occupancy thereof qua interest for default or delay in paying from December 8, 1900. Except for this althe value, but as the measure of compensa-legation, the company did not, so far as aption for the use and occupation during the period which precedes the passing of the title (see Klages v. Terminal Co., 160 Pa. 386, 28 Atl. 862), and that collection of an amount, measured by interest, is not prohibited either by the statute limiting the powers of the Court of Claims or by the common-law rule which

pears, make any request of any kind in the

* Compare Moll v. Sanitary District, 228 Ill. 633, 636, 81 N. E. 1147; Irrigation Co. v. McLain Co., 69 Kan. 334, 341-342, 76 Pac. 853; Kidder v. Oxford, 116 Mass. 165; Hamersley v. New York, 56 N. Y. 533, 537; Sioux City R. R. Co. v. Brown, 13 Neb. 317, 319, 14 N. W. 407; Atlantic & Great Western Ry. Co. v. Koblentz, 21 Ohio St. 334, 338.

court below in respect to an allowance for
use and occupation. The court does not men-
tion the subject in the opinion and it is not
referred to in the application for an appeal.
In Shoemaker v. United States, 147 U. S.
282, 321, 13 Sup. Ct. 361, 37 L. Ed. 170, and
Bauman v. Ross, 167 U. S. 548, 598, 17 Sup.
Ct. 966, 42 L. Ed. 270, to which both counsel
refer, the point here decided was not in-
volved, since the court held that under the
express terms of the acts there in question
the United States were not entitled to pos-
session of the land until the damages had
been assessed and actually paid.
The Judgment below is
Affirmed.

Mr. Justice McREYNOLDS took no part in the consideration and decision of this case.

(253 U. S. 275)

dians, the tribe are entitled to payment for the value of cattle purchased in such bad condition, or so badly cared for on the way to the reservation, that they died.

4. COURTS 468-FINDING OF COURT OF CLAIMS AS to CONSTRUCTION OF BUILDING FROM INDIANS' MONEYS CONSTRued.

A finding of the Court of Claims that a building constructed by the government for an infirmary for certain tribes of Indians, and paid for in part out of money belonging to one of such tribes, was not used and was not such a building as was contemplated by treaties with such tribe, did not mean that a building of that general character was not contemplated, but that the particular building was not what it ought to have been, and not suitable for the use of the Indians.

5. COURTS 389-FINDING OF COURT OF CLAIMS HELD ONE OF FACT, OR MIXED FACT AND LAW, AND NOT REVIEWABLE.

A finding of the Court of Claims that a building constructed by the government as an infirmary for certain tribes of Indians was not used, and was not such a building as was con

UNITED STATES v. OMAHA TRIBE OF templated by treaties with one of such tribes.

INDIANS.

OMAHA TRIBE OF INDIANS v. UNITED

STATES.

(Argued March 18, 1920.

1920.)

was either a finding of fact, or a finding of
mixed facts and law, with the question of law
inseparable, and in either case was not re-
viewable.

Decided June 1, 6. COURTS 449 (4)—CONSTRUCTION OF UN-
FIT BUILDING HELD "MISAPPROPRIATION OF
FUNDS,' WITHIN ACT GIVING COURT OF
CLAIMS JURISDICTION.

Nos. 243, 244.

1. INDIANS 6-TREATY OBLIGATION TO PRO-
TECT FROM HOSTILE TRIBES HELD TO IMPOSE
NO LIABILITY, WHERE PROTECTION NOT DEEM-
Ed NECESSARY BY PRESIDENT.

Under article 7 of the treaty of March 16,
1854, with the Omaha Indians, providing that
the United States would protect such Indians
from hostile tribes as long as the President
might deem such protection necessary, no lia-
bility rests on the government because of the
killing of members of the tribe and the steal-
ing of their horses by hostile tribes, where
there is no finding of a failure to provide pro-
tection deemed necessary by the President.
2. COURTS 468 - FINDING OF COURT OF
CLAIMS AS to DEATH OF CATTLE PURCHASED
FOR INDIANS CONSTRued.

A finding of the Court of Claims that cattle purchased by the government for Indians of the Omaha Tribe under a provision of the treaty of March 6, 1865, were in bad condition when they reached the reservation, and that 50 of them died, necessarily imports that they either were in bad condition when purchased, or were badly cared for on the way to the reservation.

3. INDIANS 7-DEATH OF CATTLE PURCHAS-
ED FOR INDIANS IN BAD CONDITION OR BAD-
LY CARED FOR HELD TO CONSTITUTE CLAIM
AGAINST GOVERNMENT.

Under the treaty of March 6, 1865, with the Omaha Indians, providing that the consideration for lands thereby ceded might be expended by the government for goods, provisions, cattle, etc., for the benefit of the In

The construction by the government of a building as an infirmary for certain tribes of Indians, which was not used and was not suitable for the use of the Indians, was a "misappropriation" of the funds of the tribe for purposes not for its material benefit, within Act June 22, 1910, giving the Court of Claims jurisdiction of claims for such misappropriations.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Misappropriation.]

7. UNITED STATES 110 — INTEREST HELD NOT RECOVERABLE ON CLAIM FOR CONSIDERA TION FOR CEDED LANDS.

The treaty of March 16, 1854, with the Omaha Indians, containing a cession of lands south of a prescribed line, and providing for a similar cession of lands north of such line at the same price per acre, if they proved unsuitable as a location for such Indians, held not to have deferred the passing of title to the land north of such line until payment of the consideration, and hence under Judicial Code, § 177 (Comp. St. 1168), interest was not recoverable on a claim for the purchase price until the rendition of judgment by the Court of Claims.

8. UNITED STATES 110-Act RELATIVE TO CLAIMS OF INDIANS HELD NOT TO CHANGE USUAL RULE AS TO INTEREST.

Act June 22, 1910, conferring on the Court of Claims jurisdiction of claims of the Omaha Tribe of Indians against the United States, does not, by giving it authority to hear and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

determine both legal and equitable claims, take the claim out of the application of Judicial Code, § 177 (Comp. St. § 1168), providing that interest shall not be allowed on claims until the rendition of judgment, unless upon a contract expressly stipulating for interest.

Appeals from the Court of Claims. Suit by the Omaha Tribe of Indians against the United States. From a judgment of the Court of Claims in favor of the claimant, for less than the amount claimed (53 Ct. Cl. 549), the United States appeals, and the claimant brings a cross-appeal. Reversed in part, and affirmed in part.

under the treaty between the Unit ed States and the said tribe of Indians, ratified and affirmed March sixteenth, eighteen *277

dians north of the line specified should be ceded to the United States, and the Indians should receive the same rate per acre for it, less the number of acres assigned in lieu of it, as was agreed to be paid for the lands south of the line. By article 4, in consideration of and payment for the country thus ceded, and certain relinquishments made by the Indians, the United States agreed to pay to them certain sums of money, aggregating $840,000, in specified annual installments commencing on January 1, 1855; these sums to be paid to the Omahas or expended

for their use and benefit under the direction of the President of the United States, who was from time to time to determine at his

discretion what proportion of the annual payments should be paid in money and what

*278

proportion *applied to and expended for the moral improvement and education of the Indians, for such beneficial objects as in his judgment would be calculated to advance them in civilization, for buildings, opening farms, fencing, breaking land, providing stock, etc., and for medical purposes. By article 5, in order to enable the Indians to settle their affairs and to remove and subsist themselves for one year at their new home, and for certain other expenses, they were to receive from the United States the further sum of $41,000, to be paid out and expended under the direction of the President and in such manner as he should approve.

The Court of Claims found that the Oma

has were not satisfied with the country to

the north of the east and west line mention

hundred and fifty-four, or under *any other treaties or laws, or for the misappropriation of any funds of said tribe for purposes not for its material benefit, or for failure of the United States to pay said tribe any money due," with authority to hear and deter-ed, and duly elected to take for their future mine all legal and equitable claims of the tribe, and also any legal or equitable defense, set-off, or counterclaim, and to settle the rights both legal and equitable of the parties, notwithstanding lapse of time or stat-them. The court found that the area of the utes of limitation.

The Court of Claims, after hearing the case, made findings upon which it awarded judgment in favor of the Indians for various sums aggregating $122,295.31. 53 Ct. Cl. 549.

home a tract of 300,000 acres south of the line; and, this fact being reported to the President, by his direction a tract of 300,000 acres south of the line was set apart for

land north of the line belonging to the Indians was 783,365 acres, and that after deducting from this the 300,000 acres set apart for them in accordance with the provisions of the treaty, there was an excess of 483,365 acres, for which they had not been paid. The price for this was fixed by taking the

and dividing it by 4,500,000 acres, the area of the lands south of the line ceded by the Omahas to the United States, making the treaty price 19.6 cents per acre, at which rate the 483,365 acres for which the Indians were still to be paid amounted to $94,739.54. This was awarded to them.

By article 1 of the treaty of March 16, 1854 (10 Stat. 1043), the Omaha Indians ced-aggregate of the treaty payments ($881,000) ed to the United States all their lands west of the Missouri river and south of a line drawn due west from a point stated, reserving the country north of that line for their future home, with a proviso that, if this country should not, on exploration, prove to be a satisfactory and suitable location for the Indians, the President might with their The court found that, of the $41,000 specconsent set apart and assign to them, within|ified in article 5, the government expended or outside of the ceded country, a residence $23,453.21 in carrying out the provisions of suited for and acceptable to them, not greater in extent than 300,000 acres, in which -case all of the country belonging to said In

that article, and the balance, $17,546.79, remained in the hands of the Indian agents of the United States charged with the disburse