115 C. Cls.

JURISDICTION-Continued

cedure Act would seem to give to the courts, ap-
parently the United States District Courts, to which
the Act gives jurisdiction in such cases, plenary power
to shape the judicial review to fit the case. Id.
Courts 518.

VI. Where plaintiff brings suit against the United States
to recover expenses incurred by her in pursuing liti-
gation concerning taxes in the United States Dis-
trict Court, the United States Court of Appeals and
the Supreme Court of the United States, it is held
that the Court of Claims is without jurisdiction and
defendant's demurrer is sustained and plaintiff's
petition dismissed. Whetstone, 816.

Courts 449 (1).

See also Civil Service Retirement II; Eminent Domain XXV,
XXVI.

JURISDICTIONAL ACT.

See Indian Claims I, II, III, IV, V, VI, VII.

JUST COMPENSATION.

See Eminent Domain I, II, III, IV, V, VI, VII, VIII, IX, X, XI,
XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, XX, XXI,
XXII, XXIII, XXIV, XXV, XXVI; Jurisdiction II, III,
IV, V.

LABOR CONDITIONS.

See Contracts IV, V, VI, VII, VIII, X, XI.
LAND GRANT ROUTES.

I. Where plaintiff, a non-land-grant railroad, entered into
an agreement with the Government, known as the
Standard Land-Grant Equalization Agreement, to
transport over its lines Government property at the
lowest net tariff rates lawfully available over land-
grant aided routes between the same points of origin
and destination; it is held that the settlements made
by the defendant for transporting the shipments in
question were in accordance with the provisions of
the Equalization Agreement and plaintiff is not
entitled to recover. Union Pacific Railroad (No.
46989), 321.

II. Where plaintiff sues to recover higher rates than were
paid by defendant, on the basis of land-grant deduc-
tions made by the Government for the transporta-
tion over its lines of certain Government property,
between Ogden, Utah (or points east of Ogden) and
Portland, Oregon (or points west of Portland) during
the period August 3, 1940, to August 28, 1942; it is
held that in computing the freight charges for the

115 C. Cls.

LAND GRANT ROUTES-Continued

shipments in question the defendant was, under the
provisions of the Equalization Agreement, entitled
to use the lawful tariff rates which were applicable
at the time from origins to destinations via the line
of the Southern Pacific Company, through Fernley,
Nevada, Alturas, California, and Eugene, Oregon,
less deductions on account of land-grant, based upon
the percentage of land-grant mileage in the land-
grant route of the Southern Pacific Company from
Ogden, Utah, via Fernley, Nevada, Roseville, Cali-
fornia, and Eugene, Oregon. Id.

III. The contention of the plaintiff is not sustained that if
the Government uses the rates applicable via one
route and restricted to that route the percentage of
land-grant deductions to be made from such gross
tariff rates must be determined on the basis of the
land-grant mileage in that same route. Southern
Pacific Co. v. United States, 307 U. S. 393, cited.
See also Southern Railway Co. v. United States, 322
U. S. 72. Id.

LEND-LEASE.

Public Lands 85.

See Contracts LXXI, LXXII, LXXIII, LXXIV, LXXV, LXXVI,
LXXVII.

LIFE INSURANCE, OWNERSHIP OF.

See Taxes XVIII, XIX, XX, XXI.

LIQUIDATED DAMAGES.

See Contracts XVI, XLIII, XLIV, XLV, XLVI, XLVII, LXVIII,
XLIX, L, LI, LII, LIII, LIV, LV, LVI, LVII.

LUCAS ACT.

I. In a suit under the War Contract Hardship Act, known
as the Lucas Act, as amended (41 U. S. C. 106,
Supp. II), transferred to the Court of Claims from
the U. S. District Court, as authorized by Section 6
of the Lucas Act, where the plaintiff elected to
replead by filing a new petition, pursuant to the
rules of the Court, the statement in plaintiff's peti-
tion that it "filed numerous written requests for
relief with respect to its aforesaid losses" is a suffi-
cient compliance with the provisions of Section 3
and it is not required by the Act that plaintiff attach
as part of its petition copies of the requests for
relief nor is it required that the facts concerning
these requests be set forth in the petition. Jardine
Mining Co., 279.

Courts 463.

115 C. CLs.

LUCAS ACT-Continued

II. The provision in paragraph 202 (e) of Executive Order
9786 that each claim should be accompanied by
copies of every written request for relief with respect
to the losses claimed has no application to a claim
filed in the Court of Claims, since the regulations
authorized by section 1 of the Act are applicable to
the departments and agencies authorized to consider,
adjust and settle claims arising under the Act and
are not applicable to the Court of Claims. Id.
Courts

463.

III. Where the defendant in its brief sets forth the letter
which it supposes plaintiff relies on as being a
"request for relief,” but the letter is not a part of
plaintiff's petition and is not described therein; it is
held that the letter is not properly before the court
and cannot be considered on a motion to dismiss.
Id.
Courts

463.

IV. Defendant's contention that the claim in suit was not
one which would have received favorable considera-
tion under the First War Powers Act is based on
paragraph 307 of Executive Order No. 9786, which
regulation the Court of Claims, in Howard Industries,
Inc. v. United States, 113 C. Cls. 231, held to be
invalid and in direct conflict with the terms of the
Lucas Act. Id.

V. The Court concludes that plaintiff's petition has set
forth a cause of action within the provisions of the
Lucas Act and the defendant's motion to dismiss
the first cause of action is accordingly overruled. Id.
United States 74.

VI. Plaintiff's second cause of action, under 28 U. S. C.
1491, is based upon a claim against the United States
founded upon a contract of June 17, 1943, entered
into with the Government by its agencies and
instrumentalities, which was cancelled by the
Government before completion, on January 4, 1946.
Plaintiff contends that upon the happening of
certain events enumerated in the force majeure
provision of its contract the contract was suspended
and that plaintiff was entitled to an 18 months ex-
tension of the time required to make deliveries.
It is held that the cancellation clause in the contract
was valid and not inconsistent with the other terms
of the contract, and that the Government did not
breach the contract by its cancellation, in spite

115 C. Cls.

LUCAS ACT-Continued

of the fact that the contract term may have been
extended by the operation of the force majeure
clause. It is further held that plaintiff's petition
does not state a cause of action under 28 U. S. C.
1491, and defendant's motion to dismiss is granted
with respect to plaintiff's second cause of action. Id.
United States 73 (24).

LUMP SUM CONTRACT.

See Contracts IV, V, VI, VII, VIII, IX, X, XI.
MINING CLAIMS.

See Jurisdiction II, III, IV, V.

MUTUAL MISTAKE.

See Contracts LXXXII.

OPERATING LOSS.

See Eminent Domain XIII, XIV, XV, XVI, XVII, XVIII.
PAY AND ALLOWANCES.

I. Upon an agreed statement of facts it is held that the
plaintiff was, from November 29, 1947, the date on
which he executed the oath of office as such, an
officer in the Regular Army of the United States,
with the rank of captain, and that he continued as
such officer through February 29, 1949, the last
date for which compensation is claimed in the instant
suit. Recovery is allowed. Schellhammer, 409.
Army and Navy 13 (1).

II. Plaintiff was duly appointed an officer in the Regular
Army of the United States and was commissioned
in that office. His previous declination of an
appointment is irrelevant, and his tender of his
resignation, after he had been appointed and com-
missioned, is likewise irrelevant, since the resigna-
tion was withdrawn, with the express consent of the
Government, and was therefore not accepted. Id.
Army and Navy 9.

III. Under Army Regulations, military personnel while
on leave revert to duty status as of the date of
admission to an Army hospital. Id.

IV. Where, after his hospitalization, plaintiff was given no
orders but was erroneously treated as never having
been in the Regular Army, it cannot be said that
plaintiff was unwilling to perform the duties of his
office. Id.

V. Plaintiff's claim that his pay should be that of Lieu-
tenant Colonel is disallowed, since the order giving
plaintiff a temporary appointment as Lieutenant

115 C. Cls.

PAY AND ALLOWANCES-Continued

Colonel, effective November 29, 1947, was revoked
after he had failed to execute the oath of office which
he returned with an endorsement declining the
temporary appointment as Lieutenant Colonel. Id.
Army and Navy 8.

PENALTY PROVISION.

See Contracts XV, XVI, XVII.

PROOF.

See Contracts II.

REFEREE IN BANKRUPTCY.

See Jurisdiction I.

REFORMATION OF CONTRACT.

See Contracts LXXVIII, LXXIX, LXXX, LXXXI, LXXXII.
RELEASE.

See Contracts XXXIII.

RENTAL OF EQUIPMENT.

See Contracts XII, XIII, XIV, XV, XVI, XVII.
RENTAL OF PROPERTY.

Plaintiffs leased to the United States the Fleetwood
Hotel in Miami Beach for the use of the Army from
May 1, 1942, to December 5, 1945. Certain fur-
nishings not wanted by the Army for its use were
stored in various parts of the hotel. Upon termina-
tion of the lease, all of these furnishings so stored,
except some drapes, had disappeared. It is held
that there is a complete absence of evidence of the
existence or value of any of the furnishings sued for,
except certain drapes, and as to the drapes there is
some evidence as to their existence but none as to
their value. The plaintiffs are not entitled to
recover and the petition is dismissed. Fleetwood
Hotel Co., 84.

RETIREMENT, BENEFICIARY OF.

See Civil Service Retirement V, VI, VII, VIII, IX.
RETIREMENT FUND.

See Civil Service Retirement I, II, III, IV.

SOLDIER ARRESTED.

See Suit For Money Taken I, II.

STATUTE OF LIMITATIONS.

I. In a suit for salary where the petition alleges that
plaintiff was discharged "with prejudice", by the
Treasury Department on June 18, 1938, and on
January 18, 1943, she was reinstated in Government
service by the War Production Board, plaintiff's
petition filed in the Court of Claims August 17, 1949,
is barred by the statute of limitations. 28 U. S. C.
2501.
Courts

Dorer, 83.

461.