in this case. The determination of the value of money and, conversely, the monetary value of property in terms in which money is defined, is expressly conferred by the Constitution upon the Congress. It is for the Congress to provide the monetary yardstick for the use of the courts as well as others. Accordingly, where the thing taken and the compensation given was money, it would have been inappropriate for the Congress not to have determined the amount to be paid.

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The Government, in substituting other paper money for gold certificates, dollar for dollar, was exercising its undoubted sovereign power to retire one form of currency and issue another in place thereof. There is no taking of private property for public use involved. The actual transaction was the exchange or substitution by the Government in its sovereign capacity of one kind of money for another, both being legal tender for the same amount.

The plaintiff confuses destruction of property with a taking of private property for public use. Where private property has been taken for public use, a contract implied in fact arises for the payment of just compensation, and suit for just compensation may then be maintained in the Court of

25 See for example the Act of April 2, 1792, providing for money of account and that "all proceedings in the courts of the United States shall be kept and had in conformity to this regulation." (C. 16 Sec. 20, 1 Stat. 250; R. S. Sec..

Claims. On the other hand, if the Government destroys property without taking it for public use, there is no contract implied in fact to pay compensation. Inasmuch, however, as the jurisdiction of the Court of Claims is limited to actions on contract express or implied in fact, that tribunal may not entertain a suit for damages caused by the destruction of property. To abrogate a contract right is not to take private property for public use. To frustrate a contract is not to appropriate it. These principles were very clearly formulated and applied in Omnia Commercial Company v. United States, 261 U. S. 502, 508, 513:

The contract in question was property within the meaning of the Fifth Amendment, Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 690; Cincinnati v. Louisville & Nashville R. R. Co., 223 U. S. 390, 400, and if taken for public use the Government would be liable. But destruction of, or injury to, property is frequently accomplished without a "taking" in the constitutional sense. To prevent the spreading of a fire, property may be destroyed without compensation to the owner, Bowditch v. Boston, 101 U. S. 16, 18; a doctrine perhaps to some extent resting on tradition. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393. There are many laws and governmental operations which injuriously affect the value of or destroy property-for example, restrictions upon the height or character of buildings, destruction of diseased cattle, trees, etc., to prevent contagion-but for which no rem

edy is afforded. Contracts in this respect do not differ from other kinds of property.

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In the present case the effect of the requisition was to bring the contract to an end, not to keep it alive for the use of the Government.

The Government took over during the war, railroads, steel mills, shipyards, telephone and telegraph lines, the capacity output of factories and other producing activities. If appellant's contention is sound the Government thereby took and became liable to pay for an appalling number of existing contracts for future service or delivery, the performance of which its action made impossible. This is inadmissible. Frustration and appropriation are essentially different things.

II.

THE COURT OF CLAIMS HAS NO JURISDICTION OF THIS ACTION AS GOLD CERTIFICATES ARE MONEY OR A MEDIUM OF EXCHANGE AND DO NOT CONSTITUTE CONTRACTS OF THE UNITED STATES IN ITS CORPORATE OR PROPRIETARY CAPACITY

Our discussion has thus far proceeded on the assumption, made for the sake of the argument only, that a gold certificate is a contract on which an action may be maintained against the United States in the Court of Claims under Section 145 of the Judicial Code, which confers upon that tribunal jurisdiction of actions against the United States on contracts express or implied. We respectfully submit, however, that actually a gold cer

tificate is not such a contract and that consequently the Court of Claims has no jurisdiction of an action brought on gold certificates. The certificate is money. Money, be it coin or paper, is not a contract. It is a medium of exchange. As such it is created by the Government acting in its sovereign capacity, for the establishment and regulation of a monetary system is one of the paramount and basic powers of Government. This point has been discussed in full in our brief in Nos. 471 and 472 and will not be enlarged upon at this juncture. We have searched the books in vain for an action successfully maintained against the Government of the United States to recover on money as on a contract. In this connection the defendant relies on State National Bank of Boston v. United States, 24 C. Cls. 488, and Bank of Boston v. United States, 10 C. Cls. 519, affirmed, 96 U. S. 30. Both of these cases involve the same suit. It was not an action to recover on gold certificates as contracts, but to recover on an implied contract arising out of the conversion of gold certificates by a Government officer to the use of the United States.

This Court in Ling Su Fan v. United States, 218 U. S. 302, 310-311, expressly recognizes that money or the medium of exchange has attributes quite apart from its intrinsic qualities. As the Court stated in that case, it bears "the impress of sovereign power which fixes value and authorizes * use in exchange." The Government in its corporate or proprietary capacity is not answerable for what it does in its sovereign capacity. Horowitz v.

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United States, 267 U. S. 458. When it issues money the Government is not contracting in its corporate or proprietary capacity. It is exercising one of the fundamental functions of sovereignty.

As was forcefully said by this Court in the Legal Tender Cases, supra, at p. 545, "Whatever power there is over the currency is vested in Congress. If the power to declare what is money is not in Congress, it is annihilated."

Not only so, but the Constitution expressly confers upon the Congress the power to fix or regulate the value of money. Its action in respect of plaintiff's certificates is essentially tantamount to that. For reasons of public policy, deemed not only adequate but impelling, the Congress called in these certificates and stopped their circulation, but at once issued and handed over to plaintiff an equal amount, dollar for dollar, of other money, and which it had declared to be legal tender for all purposes. No doubt it has been or could have been used by him in the same manner as the certificates which were surrendered and with exactly the same effect.

Even if the Government, when the certificates were surrendered, had paid gold coin to the plaintiff, it is evident that there has not been a moment since that date, at which the plaintiff could have derived any greater benefit from the gold coin thus paid than from a corresponding amount, dollar for dollar, of any other kind of money in circulation. What could he have paid with it-no more debts, no more taxes.

What could he have secured-no