(40 Sup.Ct.) 196-CLAUSE FOLLOWING SEVERAL WORDS APPLIED TO ALL.

2. STATUTES

When several words in a statute are followed by a clause which is as much applicable to the first and other words as to the last, the natural construction of the language demands that it be read as applicable to all.

1 Act of March 2, 1901, c. 812, § 3: "That the jurisdiction of the District Court of the United States for Porto Rico in civil cases shall, in addition to that conferred by the act of April twelfth, nineteen hundred, extend to and embrace controversies the United States, or citizens or subjects of a forwhere the parties, or either of them, are citizens of eign state or states, wherein the matter in dispute exceeds, exclusive of interest or costs the sum or

value of one thousand dollars."

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

limited jurisdiction dependent on alienage | the civil law. This might not only prove is the question submitted to us.

*348

very inconvenient to Spanish residents, but would be inconsistent with the spirit of article 11 of the treaty of 1898 between Spain and the United States (30 Stat. 1754, 1760), under which Spaniards residing in Porto Rico were guaranteed "the right to appear before such courts and to pursue the same course as citizens of the country to which the courts belong."

[2, 3] *No reason appears why the clause "not domiciled in Porto Rico" should not be read as applying to the entire phrase "citizens or subjects of a foreign state or states, or citizens of a state, territory, or district of the United States." When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all. United States v. Standard Brewery, 251 U. S. 210, 218, 40 Sup. Ct. 139, 64 L. Ed. -; Johnson v. Southern Pacific Co., 196 U. S. 1, 18-19, 25 Sup. Ct. 158, 49 L. Ed. 363, and cases cited. Furthermore, special reasons exist for so construing the clause in question. The act manifests a general purpose to greatly curtail the jurisdiction of the District Court. If the application of the clause were doubtful, we should so construe the provision as to effectuate the general purpose of Congress. curity & Trust Co. v. District of Columbia, 224 U. S. 491, 32 Sup. Ct. 553, 56 L. Ed. 856; Inter-Island Steam Navigation Co. v. Ward, | (Argued April 30, 1920. Decided June 1, 1920.) 242 U. S. 1, 37 Sup. Ct. 1, 61 L. Ed. 113. But it seems to us clear that it applies alike to aliens and to American citizens.

(253 U. S. 330) UNITED STATES v. NORTH AMERICAN TRANSPORTATION & TRADING CO. American Se-NORTH AMERICAN TRANSPORTATION & TRADING CO. v. UNITED STATES.

Nos. 319 and 320.

Suit may be brought in the District Court if either party has the jurisdictional qualifications; that is, the act confers upon such party not merely the right to sue but the liability to be sued. In the population of Porto Rico there are many aliens and these are largely Spaniards.2 If the limitation "not

*349

domiciled in Porto Rico" were *inapplicable to aliens the result would work peculiar hardship and assuredly unintended discrimination against these Spaniards. A Spanish subject domiciled in Porto Rico might be sued by an American domiciled in Porto Rico or a Porto Rican in the District Court, where the proceedings are conducted in the English language and according to the forms of Anglo-American law; whereas an American domiciled in Porto Rico could be sued only in the insular courts where the proceedings are conducted in the Spanish language and according to the procedure and processes of

Congress could not have intended to give the District Court jurisdiction of any controversy to which a domiciled alien is a party while denying under similar circumstances jurisdiction where a domiciled American is a party.

"Spanish-born were 7,690, or 55 per cent. of the total foreign born. The United States contributed 1,069." Commercial Porto Rico, Department of Commerce and Labor, April, 1907, p. 11.

"Of the total number of males 21 and over in 1910, 238,685 were of Porto Rican citizenship, 4,112 were of Spanish citizenship, 1,836 were citizens of

the United States, and 2,385 were citizens of other foreign countries." Statistics for Porto Rico, 13th

Census, p. 24.

The question submitted is answered
No.

1. UNITED STATES 69-PROMISE TO PAY FOR PROPERTY TAKEN BY AUTHORIZED OFFICERS IS IMPLIED.

When the government, without condemnation proceedings, appropriates private property for a public use under legislative authority, it impliedly promises to pay therefor; but such promise is not implied unless the officer who physically took possession of the property was Congress or by the official upon whom Congress duly authorized so to do, either directed by conferred the power.

2. UNITED STATES

60-ONLY SECRETARY OF WAR IS AUTHORIZED TO TAKE LAND FOR MILITARY RESERVATION.

"It is somewhat surprising to find that 886,442 of the actual population are classed as Spaniards, and only 4,324 as foreigners." Report on the Island of Porto Rico by Henry C. Carroll, Special Commis-3. sioner, October 6, 1899, p. 11.

The power to take lands for barracks and troop quarters under Appropriation Act March 3, 1899, May 26, 1900, was conferred on the Secretary of War, in view of Act Aug. 1, 1888, § 1 (Comp. St. § 6909), and Act Aug. 18, 1890, 1 (Comp. St. § 6911), so that the right to recover for private property taken for such purposes accrued, not when physical possession of the property was taken by an army officer not authorized by the Secretary of War, but only when the Secretary of War first approved the action.

UNITED STATES 69-SAVING OF PRIVATE RIGHTS IN ORDER TAKING MILITARY LAND GIVES RIGHT TO COMPENSATION.

A statement in the President's order that land taken for military purposes was reserved, subject to any legal rights existing to any of the land, refers only to the right to compensation of owners of private property within the reservation, which had already been taken by the army officers.

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

(40 Sup.Ct.)

4. UNITED STATES 69-POSSESSION BY SECRETARY OF WAR UNDER AUTHORITY OF CONGRESS GIVES RIGHT OF ACTION.

Even if private property was excepted from an order reserving land for military purposes, continued possession thereof by the Secretary of War, who had ample authority from Congress, and the erection of buildings thereon by him, gives the owners a right of action against the government.

5. UNITED STATES 110-INTEREST NOT RECOVERABLE ON CLAIM FOR COMPENSATION FOR LAND TAKEN BY UNITED STATES.

The right of an owner of land taken by an authorized officer for public use to recover compensation from the government is not based on the Fifth Amendment to the Constitution,

but upon an implied promise to pay for the land, which can be enforced by the Court of Claims, so that interest on the value between the time of taking and the time of payment cannot be recovered, under Judicial Code, § 177 (Comp. St. § 1168), denying allowance of interest on any claim by the Court of Claims unless upon a contract expressly stipulating for

interest.

Appeals from the Court of Claims.

Suit by the North American Transportation & Trading Company against the United States. Judgment for the claimant for a part only of the amount claimed was rendered by the Court of Claims (53 Ct. Cl. 424), and both parties appeal. Affirmed.

*331

*Messrs. Burt E. Barlow and A. R. Serven, both of Washington, D. C., for North American Transportation & Trading Co.

Mr. Assistant Attorney General Davis, for the United States.

This suit was brought by the North American Transportation & Trading Company in the Court of Claims on December 7, 1906.

*332

The petitioner seeks to recover the "value of a placer mining claim situated on the public land near Nome, Alaska, which is alleged to have been taken by the government on December 8, 1900, and also compensation for use and occupation thereof after that date. Ownership of the property by the company and the physical taking and continued possession of it by the government were not controverted. The lower court found, also, that about July 1, 1900, Gen. Randall, United States Army, commanding the Department of Alaska took possession, as a site for an army post, of a large tract of public land which included the mining claim. The company yielded possession of the part occupied by it being unable to withstand his authority, but at the same time it demanded compensation, which Gen. Randall promised would be paid. Use of the site for an army post was thereafter recommended by him to the Secretary of War. Pursuant to this recommendation, the President issued on December 8, 1908, an order by which the tract was reserved from sale and set aside for military purposes; and on December 20, 1908, the Secretary of War announced it as a public reservation, for the present under the control of the War Department. The tract has been used as an army post continuously since possession was first taken by Gen. Randall. The buildings erected thereon are situated on that portion of the land which had been the company's placer claim; so that at no time since Gen. Randall took possession of the land has the company been able to operate its claim or do any further mining work thereon.

was taken within the *six years—that is, on December 8, 1900-and that its then reasonable value was $23,800. It entered judgment for that amount. 53 Ct. Cl. 424. Both parties appealed-the government, on the ground

that the right of recovery, if any,

was

barred; the company, on the ground that no compensation was allowed for the use and occupation between the date of the taking and the date of entry of judgment.

[1] First. When the government, without instituting condemnation proceedings, appropriates for a public use under legislative au

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,

The government contended that, if on the facts there was a legal taking or other act entitling petitioner to recover compensation, the cause of action had accrued more than six years prior to the commencement of this suit, and that therefore under section 156 of the Judicial Code (Comp. St. § 1147) the petition should be dismissed. The Court of Claims found that the company's property

*333

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

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. 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

it in the announcement made by the Secretary must, in view of the circumstances, have meant merely that the right to compensation of the company and of any others was 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.

[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 state 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 in which the land was situated, and under the law of the state interest was recoverable. United States v. Engeman (D. C.) 46 Fed. 898; Town of Hingham v. United States, 161 Fed. 295, 300, SS C. C. A. 341, 15 Ann. Cas. 105; United States v. Sargent, 162 Fed. 81, 89 C. C. A. 81; United States v. First National Bank (D. C.) 250 Fed. 299, Ann. Cas. 1918E, 36; United States v. Rogers, 257 Fed. 397, 168 C. C. A. 437; United States v. Highsmith, 257 Fed. 401, 168 C. C. A. 441. These conformity provisions, which relate only to the laws of states, can have no application to lands in Alaska; nor can they affect proceedings brought in the Court of Claims.

The right to bring this suit against the 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. 226, 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

*334 determine whether the army post should be established and what land should be taken therefor. Compare Nahant v. United States, 130 Fed. 273, 70 C. C. A. 641, 69 L. R. A. 723; Id., 153 Fed. 520, 82 C. C. A. 470; (C. C.) United States v. Certain Lands in Narragansett, R. I., 145 Fed. 654. rower to take possession of the company's mining claim was not vested by law in Gen. Randall; and the Secretary of War had not, so far as appears, either authorized it or approved it before December 8, 1900. It was only after the President reserved from sale and set aside for military purposes the large tract of land in which the company's mining claim was inIcluded that the Secretary of War took action 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 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 [ exempts the sovereign from liability to pay implied is to pay the value of property as of 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 proceed

*336

United States v. Honolulu Plantation Co., 122

Fed. 581, 585, 58 C. C. A. 279; Burt V. Mer-ings; and it may be that, even in the ab

chants' 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:

the date of the taking (Bauman v. Ross, *167 U. S. 548, 587, 17 Sup. Ct. 966, 42 L. Ed. 270;

sence 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. 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

"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."

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.

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 of the property, the further sum of $7,500 per annum for the use and occupancy thereof from December 8, 1900. Except for this al

$337

[6] The company argues that interest is allowed in condemnation proceedings, not qua interest for default or delay in paying the value, but as the measure of compensa-legation, the company did not, so far as aption for the use and occupation during the pears, make any request of any kind in 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

2 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.