A-24750, OCTOBER 27, 1928, 8 COMP. GEN. 212

A-24750: Oct 27, 1928

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THAT CLAIMS FOR PRIVATE PROPERTY LOST IN THE MILITARY SERVICE UNDER THE CONDITIONS THEREIN FIXED MUST BE FILED WITHIN TWO YEARS IS NOT A STATUTE OF LIMITATIONS. INSANITY OF THE CLAIMANT AFTER LOSS AND BEFORE FILING THE CLAIM WILL NOT EXTEND THE LIMITATION. 1928: THERE IS FOR CONSIDERATION THE LEGALITY OF PAYMENT OF $131.55 MADE BY MAJ. PAYMENT IS STATED TO HAVE BEEN MADE UNDER THE ACT OF MARCH 4. ORDERS WERE RECEIVED SENDING COMPANY "C. INSTRUCTIONS WERE GIVEN THAT ALL PERSONAL PROPERTY SHOULD BE PACKED IN BARRACK BAGS. COMPANY "C" WAS RELIEVED AND SENT BACK OF THE LINES TO A REST CAMP. THAT AT THIS TIME THE BAGS WERE REOPENED. ALTHOUGH DILIGENT SEARCH WAS MADE. THAT THE FACTS OF THIS LOSS HAVE BEEN SUBSTANTIATED BY AFFIDAVITS FROM CLAIMANT'S PLATOON COMMANDER.

A-24750, OCTOBER 27, 1928, 8 COMP. GEN. 212

PRIVATE PROPERTY LOST IN THE MILITARY SERVICE THE REQUIREMENT IN THE ACT OF MARCH 4, 1921, 41 STAT. 1436, THAT CLAIMS FOR PRIVATE PROPERTY LOST IN THE MILITARY SERVICE UNDER THE CONDITIONS THEREIN FIXED MUST BE FILED WITHIN TWO YEARS IS NOT A STATUTE OF LIMITATIONS, BUT A LIMITATION OF THE RIGHT, AND THE PERIOD MAY NOT BE EXTENDED FOR ANY CAUSE NOT NAMED IN THE STATUTE. INSANITY OF THE CLAIMANT AFTER LOSS AND BEFORE FILING THE CLAIM WILL NOT EXTEND THE LIMITATION.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 27, 1928:

THERE IS FOR CONSIDERATION THE LEGALITY OF PAYMENT OF $131.55 MADE BY MAJ. E. T. COMEGYS, FINANCE DEPARTMENT, UNITED STATES ARMY, ON HIS VOUCHER NO. 1958, MAY, 1928, ACCOUNTS, TO JOHN W. GASKELL, FORMERLY A PRIVATE, COMPANY C, NINTH INFANTRY, UNITED STATES ARMY, FOR PRIVATE PROPERTY LOST BY HIM WHILE IN THE MILITARY SERVICE IN FRANCE IN 1918; PAYMENT IS STATED TO HAVE BEEN MADE UNDER THE ACT OF MARCH 4, 1921, 41 STAT. 1436. THE BOARD APPOINTED TO CONSIDER THE CLAIM IN THE OFFICE OF THE CHIEF OF FINANCE REPORTED:

THAT SOME TIME IN MARCH 1918, ORDERS WERE RECEIVED SENDING COMPANY "C," 9TH INFANTRY, FROM OUTREM-COURT, MARNE, TO THE TOUL SECTOR; THAT UPON RECEIPT OF THESE ORDERS, INSTRUCTIONS WERE GIVEN THAT ALL PERSONAL PROPERTY SHOULD BE PACKED IN BARRACK BAGS, 4 MEN TO A BAG, FOR STORAGE, AS NOTHING BUT NECESSARY EQUIPMENT COULD BE TAKEN INTO THE TRENCHES; THAT AFTER ABOUT TEN DAYS AT THE FRONT, COMPANY "C" WAS RELIEVED AND SENT BACK OF THE LINES TO A REST CAMP, CAMP GIBRALTAR, FOR REST AND A CHANGE OF CLOTHING; THAT AT THIS TIME THE BAGS WERE REOPENED, SAID CHANGE OF CLOTHING SECURED, AND THE BAGS AGAIN FASTENED AND STORED; THAT FROM THAT TIME NOTHING HAS BEEN FOUND OF THESE BAGS, ALTHOUGH DILIGENT SEARCH WAS MADE; THAT THE FACTS OF THIS LOSS HAVE BEEN SUBSTANTIATED BY AFFIDAVITS FROM CLAIMANT'S PLATOON COMMANDER, AND HIS IMMEDIATE NONCOMMISSIONED OFFICERS AT THAT TIME; THAT CLAIMANT WAS PREVENTED FROM FILING HIS CLAIM FOR THIS LOSS WITHIN THE TWO-YEAR PERIOD ALLOWED FOR THIS PURPOSE, IN VIEW OF THE FACT THAT HE WAS CONFINED IN ST. ELIZABETHS HOSPITAL, WASHINGTON, D.C., FROM THE DATE OF HIS HONORABLE DISCHARGE, DECEMBER 11, 1919, UNTIL OCTOBER 19, 1926, WHEN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA DECLARED CLAIMANT OF SOUND MIND AND HIS DISCHARGE FROM THE HOSPITAL ORDERED; HOWEVER, HE WAS NOT ABLE TO HANDLE HIS AFFAIRS UNTIL DECEMBER 14, 1926, AT WHICH TIME THE MATTER OF THIS LOSS WAS TAKEN UP AND CLAIM FILED MAY 2, 1927; THAT THE ARTICLES HEREINAFTER LISTED WERE THOSE LOST.

IN VIEW OF THE FACTS SET FORTH ABOVE, THE BOARD IS OF THE OPINION THAT THIS CLAIM IS A JUST ONE AND ALLOWABLE UNDER THE CONDITIONS OF PAR. 4 OF THE ACT OF MARCH 4, 1921 (41 STAT. 1437), WHICH PROVIDES THAT "WHEN SUCH PRIVATE PROPERTY IS DESTROYED OR CAPTURED BY THE ENEMY,OR IS DESTROYED TO PREVENT ITS FALLING INTO THE HANDS OF THE ENEMY, OR IS ABANDONED ON ACCOUNT OF LACK OF TRANSPORTATION OR BY REASON OF MILITARY EMERGENCY, REQUIRING ITS ABANDONMENT, OR IS OTHERWISE LOST IN THE FIELD DURING CAMPAIGN.'

SECTION 5 OF THE ACT OF MARCH 4, 1921, PROVIDES:

THAT NO CLAIM ARISING UNDER THIS ACT SHALL BE CONSIDERED UNLESS MADE WITHIN TWO YEARS FROM THE TIME THAT IT ACCRUED, EXCEPT THAT WHEN A CLAIM ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN TWO YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN TWO YEARS AFTER PEACE IS ESTABLISHED.

AMONG THE PAPERS ATTACHED TO THE CLAIM IS A LETTER DATED MARCH 15, 1928, ADDRESSED FROM THE OFFICE OF THE CHIEF OF FINANCE TO A MEMBER OF CONGRESS RESPECTING THE CLAIM, IN PART AS FOLLOWS:

* * * THE ACT OF MARCH 4, 1921 (41 STAT. 1436), THE LAW GOVERNING THE CONSIDERATION AND SETTLEMENT OF CLAIMS OF THIS CHARACTER, PROVIDES THAT NO CLAIM ARISING UNDER THAT ACT SHALL BE CONSIDERED UNLESS MADE WITHIN TWO YEARS FROM THE TIME THAT IT ACCRUED, EXCEPT THAT WHEN A CLAIM ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN TWO YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN TWO YEARS AFTER PEACE IS ESTABLISHED. THE EFFECT, GENERALLY, OF THE JOINT RESOLUTION OF MARCH 3, 1921 (41 STAT. 1359), WAS TO DECLARE THE WORLD WAR IN WHICH THE UNITED STATES HAS THERETOFORE BEEN ENGAGED TO HAVE TERMINATED AS OF THAT DATE; AND, ACCORDINGLY, THE STATUTORY PERIOD FOR THE FILING OF CLAIMS ACCRUING WITHIN THAT WAR ENDED, AT THE LATEST, ON MARCH 3, 1923. WHEN MR. GASKELL'S CLAIM WAS ORIGINALLY RECEIVED IN THIS OFFICE THERE WAS NOTHING THEREIN TO INDICATE THAT AT ANY TIME AFTER THE INCURRENCE OF HIS LOSS HE HAD BEEN UNDER ANY LEGAL DISABILITY THAT WOULD DISTURB THE RUNNING OF THE STATUTE OF LIMITATIONS IN HIS CASE; AND, ACCORDINGLY, HE WAS ADVISED, ON MAY 20, 1927, THAT, UNDER THE PROVISIONS OF THE ACT OF MARCH 4, 1921, HIS CLAIM COULD NOT BE CONSIDERED BECAUSE THE PERIOD WITHIN WHICH THE CLAIM SHOULD HAVE BEEN FILED HAD ELAPSED.

HE WAS AGAIN ADVISED TO THE SAME EFFECT ON OCTOBER 24, 1927, AND NOT UNTIL FEBRUARY 26, 1928, DID HE MAKE ANY STATEMENT WHICH WOULD INDICATE THAT THE FACTS OF HIS CASE WERE SUCH AS TO DISTURB THE RUNNING OF THE STATUTE OF LIMITATIONS. IN A LETTER OF THAT DATE HE STATED CERTAIN FACTS WHICH INDICATED THAT, FOR A CONSIDERABLE PORTION OF TIME, HE HAD BEEN UNDER LEGAL DISABILITY WHICH PREVENTED HIM FROM FILING A CLAIM, AND UPON AN INVESTIGATION OF HIS STATEMENTS IT APPEARS REASONABLY PROBABLE THAT SUCH LEGAL DISABILITY ON HIS PART DID EXIST FROM ABOUT DECEMBER 11, 1919, TO OCTOBER 19, 1926, ALTHOUGH IT MAY BE NECESSARY FOR THE COMPTROLLER GENERAL TO PASS FINALLY ON THIS POINT. * * *

NOTWITHSTANDING THIS DOUBT SPREAD UPON THE RECORDS, THE CLAIM WAS COMPLETED AND APPROVED BY THE SECRETARY OF WAR AND PAYMENT MADE BY THE DISBURSING OFFICER, THE CONCLUSION APPARENTLY BEING THAT INSANITY OF THE CLAIMANT AT ANY TIME SUBSEQUENT TO THE ACCRUAL OF THE CLAIM AND BEFORE THE EXPIRATION OF THE PERIOD FIXED IN THE STATUTE WOULD EXTEND THE PERIOD WITHIN WHICH A CLAIM MIGHT BE FILED, BUT SUCH A CONCLUSION IS WITHOUT BASIS.

LIMITATIONS RUN AGAINST EVERY ONE WITHOUT REGARD TO THE PERSONAL DISABILITY OF INSANITY, UNLESS THERE IS A SAVING OF SUCH CASES IN THE STATUTE. 37 C.J. 1024. CITED IN SUPPORT OF THIS STATEMENT, AMONG OTHERS, IS THE CASE OF ALVARADO V. SOUTHERN PACIFIC COMPANY (TEX.CIV.A.), 193 S.W. 1108, A SUIT UNDER THE FEDERAL EMPLOYERS LIABILITY ACT, 35 STAT. 66, PROVIDING THAT NO ACTION SHALL BE MAINTAINED UNDER THE ACT UNLESS COMMENCED WITHIN TWO YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUED, AND IT WAS HELD THERE BEING NO EXCEPTION IN THE ACT EXTENDING THE TIME WITHIN WHICH SUIT MIGHT BE BROUGHT BY AN EMPLOYEE IN THE EVENT OF HIS INSANITY THE COURTS ARE NOT AT LIBERTY TO APPLY STATE STATUTES EXTENDING OR TOLLING THE TIME FOR FILING A SUIT BECAUSE OF INSANITY, SO THAT WHERE THE INJURIES OF A RAILROAD EMPLOYEE ENGAGED IN INTERSTATE COMMERCE RENDERED HIM INSANE, HIS CAUSE OF ACTION ACCRUED AT THE TIME OF HIS INJURY AND A SUIT COULD NOT BE MAINTAINED UNDER THE ACT BY HIS NEXT FRIEND MORE THAN TWO YEARS AFTER THE DATE OF THE INJURY.

BUT INDEPENDENTLY OF THIS SETTLED PRINCIPLE OF LAW, WHICH, ON THE BASIS THE CLAIM WAS APPARENTLY CONSIDERED, REQUIRED ITS REJECTION, THE ACT UNDER WHICH THE CLAIM WAS FILED IS A STATUTE CREATING RIGHTS IN INDIVIDUALS AGAINST THE UNITED STATES. UNITED STATES V. HAYDEN, 250 U.S. 328, 331. THERE IS A DISTINCTION BETWEEN PURE STATUTES OF LIMITATIONS AND SPECIAL STATUTORY LIMITATIONS RESTRICTING AND CONFINING RIGHTS AS HERE; IN SUCH A CASE TIME IS AN ESSENCE OF THE RIGHT CREATED, AND THE LIMITATION IS AN INHERENT PART OF THE STATUTE, SO THAT THERE IS NO RIGHT INDEPENDENTLY OF THE LIMITATION; THAT IS, THE LAPSE OF THE STATUTORY PERIOD EXTINGUISHES THE RIGHT ALTOGETHER. 37 C.J. 686. IN MADDEN V. LANCASTER COUNTY, 65 FED.REP. 188, 194, IT WAS SAID:* * * BUT THE PROVISO IN THE ACT THAT SUITS SHALL BE BROUGHT UPON THE RIGHTS OF ACTION IT CREATES WITHIN 30 DAYS FROM THE OCCURRING OF THE INJURIES, RESPECTIVELY, IS A CONDITION QUALIFYING THE RIGHTS OF ACTION, AND NOT A MERE LIMITATION OF THE REMEDY. THEROUX V. RAILROAD CO. (DECIDED BY THIS COURT AT THE PRESENT TERM), 64 FED. 84; THE HARRISBURG, 119 U.S. 199, 214, 7 SUP.CT. 140; RAILROAD CO. V. HINES, 25 OHIO ST. 629. IT WAS WITHIN THE DISCRETION OF THE LEGISLATURE OF NEBRASKA TO CREATE THE RIGHTS OF ACTION GIVEN BY THIS ACT, OR TO REFUSE TO CREATE THEM AT ALL; AND A FORTIORI IT WAS ENTIRELY WITHIN THE DISCRETION OF THAT LEGISLATURE TO FIX THE DURATION OF THEIR EXISTENCE,IF IT GAVE THEM BEING. THE WHOLE IS GREATER THAN ANY OF ITS PARTS. WHERE THE TIME WITHIN WHICH A RIGHT OF ACTION MAY BE ENFORCED IS LIMITED BY THE LEGISLATIVE ENACTMENT WHICH CREATES THE RIGHT, THE LEGISLATURE IS THE EXCLUSIVE JUDGE OF THE REASONABLENESS OF THE LIMITATION, AND IT IS NOT THE PROVINCE OF THE COURT TO INQUIRE CONCERNING IT. DE MOSS V. NEWTON, 31 IND. 219.

AGAIN, IT IS SAID THAT THE CONDITION THAT THE ACTION MUST BE BROUGHT "WITHIN THIRTY DAYS OF THE TIME OF SAID INJURY OR DAMAGE OCCURRING," DOES NOT EXTEND TO THIS CASE, BECAUSE THE PLAINTIFF WAS CONFINED TO HIS BED AND SUFFERED INTENSE PAIN, IN CONSEQUENCE OF HIS INJURY, FOR TWO MONTHS AFTER IT OCCURRED, AND WAS UNABLE TO CONSULT HIS ATTORNEY; THAT HE THEN PRESENTED HIS CLAIM TO THE COUNTY COMMISSIONERS, WHO REJECTED IT; THAT HE HAS NECESSARILY INCURRED LIABILITY FOR MEDICAL SERVICES UP TO THE TIME HE COMMENCED HIS ACTION; AND THAT HIS IS A CONTINUING DAMAGE, WHICH WAS NOT ALL SUSTAINED UNTIL THE DAY WHEN HE BROUGHT HIS ACTION, MORE THAN SIX MONTHS AFTER HE SUSTAINED THE INJURY. BUT IT WAS THE PROVINCE OF THE LEGISLATURE, AND NOT THAT OF THE COURTS, TO FIX THE CONDITIONS ON WHICH THE RIGHTS OF ACTION IT CREATED MIGHT BE ENFORCED, AND TO NAME THE EXCEPTIONS TO THESE CONDITIONS, IF ANY. THE LEGISLATURE HAS MADE NO EXCEPTION, ON ACCOUNT OF ANY OF THE MATTERS TO WHICH WE HAVE REFERRED, TO THE EXPRESS CONDITION THAT IT IMPOSED UPON EVERY RIGHT OF ACTION IT CREATED BY THIS ACT. THE CONCLUSIVE PRESUMPTION FROM THIS FACT IS THAT IT INTENDED TO MAKE NONE, AND IT WOULD BE JUDICIAL LEGISLATION FOR THIS COURT TO DO SO. MORGAN V. CITY OF DES MOINES, 60 FED. 208; MCIVER V. RAGAN, 2 WHEAT. 25, 29; BANK V. DALTON, 9 HOW. 522, 28; VANCE V. VANCE, 108 U.S. 514, 521, 2 SUP.CT. 854. * * *

THE SUPREME COURT IN THE HARRISBURG, 119 U.S. 199, 214, CITED IN THE THE FOREGOING OPINION, USED THE FOLLOWING LANGUAGE:

* * * THE STATUTES CREATE A NEW LEGAL LIABILITY, WITH THE RIGHT TO A SUIT FOR ITS ENFORCEMENT, PROVIDED THE SUIT IS BROUGHT WITHIN TWELVE MONTHS, AND NOT OTHERWISE. THE TIME WITHIN WHICH THE SUIT MUST BE BROUGHT OPERATES AS A LIMITATION OF THE LIABILITY ITSELF AS CREATED,AND NOT OF THE REMEDY ALONE. * * * TIME HAS BEEN MADE OF THE ESSENCE OF THE RIGHT, AND THE RIGHT IS LOST IF THE TIME IS DISREGARDED. THE LIABILITY AND THE REMEDY ARE CREATED BY THE SAME STATUTES, AND THE LIMITATIONS OF THE REMEDY ARE, THEREFORE, TO BE TREATED AS LIMITATIONS OF THE RIGHT. * * *

SEE ALSO PETERS V. HANGER, 134 FED.REP. 586, 588, AND PARTEE V. ST. LOUIS AND SAN FRANCISCO RAILROAD CO., 204 FED.REP. 970, 972, TO THE SAME EFFECT AND WHERE EXTENSIVE AUTHORITIES ON THE POINT ARE COLLECTED.

THE ACT OF MARCH 4, 1921, GIVES A RIGHT TO REIMBURSEMENT FOR PROPERTY LOST IN THE MILITARY SERVICE UNDER THE CONDITIONS THEREIN FIXED, ONLY IF THE CLAIM THEREFOR IS FILED WITHIN TWO YEARS FROM THE DATE OF LOSS, EXCEPT THAT IN CASE OF LOSS DURING THE WAR, OR WHEN WAR INTERVENES, IF FILED WITHIN TWO YEARS AFTER PEACE IS ESTABLISHED. THERE IS NO RIGHT UNDER THE STATUTE IF THE CLAIM IS NOT FILED WITHIN THE TIME LIMIT FIXED THEREFOR. NO EXCEPTIONS OTHER THAN THOSE NAMED IN THE STATUTE WILL EXTEND THE TIME. INSANITY IS NOT ONE OF THE EXCEPTIONS. THE ACT OF MARCH 4, 1921, WAS NOT, THEREFORE, AUTHORITY FOR THE PAYMENT. THE PAYMENT WAS A MERE GRATUITY PAID ENTIRELY WITHOUT AUTHORITY OF LAW, AND THE DISBURSING OFFICER IS ENTITLED TO NO CREDIT THEREFOR. THE ITEM WILL BE DISALLOWED IN THE SETTLEMENT OF HIS ACCOUNTS.