Lapas attēli

Opinion of the Court.

was not until three years thereafter, viz: January 13, 1894, that any proceedings in court were inaugurated to take the depositions of living witnesses. On January 16, 1894, the court by proper orders directed the taking of the testimony and one week later the plaintiff's attorney filed the single deposition of the then plaintiff Ruffee. In August, 1916, three additional depositions were filed. Passing over for the present without comment the legislative impediments to a judicial investigation of Indian depredation cases prior to March 3, 1891, it would seem from this record that the defendants proceeded without more than the usual delays incident to the administration of a new jurisdictional statute involving, as it did, the investigation of a great volume of claims. As a matter of fact the case seems to have been expeditiously disposed of, no trial having been insisted upon because the testimony clearly disclosed its inevitable dismissal for noncitizenship. On November 9, 1896, the case was dismissed by agreement of counsel for noncitizenship. In October, 1916, the case was reinstated under the act of January 11, 1915, and subsequently argued and submitted on January 16, 1918.

It is most difficult to perceive, in view of this undoubted record, wherein the plaintiff augments in the slightest degree a sedulous claim for particular consideration due in any wise to laches attributable to others than himself. The court may look to the circumstances surrounding the presentation of Indian claims and the situation of the parties with respect thereto in order to ascertain if the testimony presented is the best evidence obtainable, and where the necessities of the case preclude the adducing of primary evidence there may be instances where secondary evidence is admissable, but the case at bar is not within the rule. It possesses no features entitling the invocation of any exception to the fundamental rule of evidence that where the best evidence is obtainable it must be produced. The plaintiff had in his employ at various times during his contract performance four hundred men; he was traversing a territory one thousand miles in extent, an Indian country inhabited by numerous tribes of marauding bands constantly preying

Opinion of the Court.

upon the lives and property of the inhabitants and travelers passing through. To now say that it was impossible to sustain an unusual and enormous loss of personal property extending over a period of several months by the single deposition of the plaintiff who himself knew nothing of the loss— corrobated only by the general ex parte affidavits of eighteen employees of the plaintiff, is indeed putting forward a contention the court feels unable to adopt. We do not mean to say we have not considered the affidavits or recognized their competency; on the contrary, we have given full force and effect to the provisions of the act of March 3, 1891, but we are absolutely unable to conclude that the case itself presents such an unusual aspect as to warrant the court in departing from the principles laid down in Jones v. United States, 35 C. Cls., 36.

Viewing the case in its broadest and most liberal aspect, considering in this connection the departmental reports, it is reasonably certain that the plaintiff suffered a loss and if it were possible from the record before us to even approximate the extent of the same, the court would not be averse to doing so. The testimony of Ruffee taken in conjunction with the very sweeping and general statements of the eighteen affiants leaves us without a basis of even an estimation. Ruffee asserts that he lost all the property he put into the enterprise; according to his statement there was no salvage. Testing the accuracy of this statement we derive from his deposition that upon a business venture involving the annual return of $84,000 for three years, he invested the first year in horses, mules, general equipment, and wages paid employees, the total sum of nearly $140,000; he not only lost the initial investment but repeatedly and persistently replenished a commissary department, housed in fifty-two separate log stations, of sufficient proportions to care for a moving army. This was all done on not to exceed $90,000 accumulated by the plaintiff in a period of 10 years as a small Indian trader on the Chippewa Reservation in Minnesota. Ruffee himself knows nothing of the circumstances of the loss except as reported to him. If Ruffee is to be believed, the affiants are necessarily discredited. It is, of

Opinion of the Court.

course, impossible to award a money judgment payable out of the defendant Indians' funds, if any are available, upon the testimony of Ruffee; so, in fact, we find the case resting alone upon the ex parte affidavits filed in the Indian Office. The court has never, at least since the Jones case, supra, in all the long course of Indian depredation claims, awarded a judgment against the defendants upon the uncorrobated statements appearing in ex parte affidavits. The unreliability of such testimony is fully attested by the fact of a voluntary reduction of the claim to the extent of over $70,000, and is strikingly illustrated by an instance especially set forth in the defendants' brief, wherein it is clearly shown that one of the affiants undertakes to detail two separate depredations committed on the same day at two separate stations some four or five hundred miles apart.

There is, aside from the consideration of the merits of the case, a serious question of identity of the Indian tribes involved, thus raising the jurisdictional issue as to amity. The plaintiff filed a suit in this court, No. 6644, alleging a loss of $22,255, on the eastern extremity of the mail route in issue, against the Sioux Indians. This loss can not be for other property than that involved in the case at bar, and although subsequently dismissed for nonprosecution, is none the less effective in raising a very serious question as to what Indians committed the depredations now claimed for.

The petition is dismissed and judgment will be entered against the plaintiff in favor of the United States in the sum of $117.61, the cost of printing the record in this cause.

HAY, Judge; DoWNEY, Judge; BARNEY, Judge, and CAMPBELL, Chief Justice, concur.

Argument for the Defendants.


[No. 33674. Decided February 25, 1918.]

On the Proofs.

Army officers; longevity pay; statutes.-Congress by the act of June 3, 1916, 39 Stat., 183 gave to retired officers of the Army detailed on active duty the longevity pay which would accrue to them by reason of their added active service after retirement, which pay they could not theretofore receive by reason of the act of March 2, 1903, 32 Stat., 932.

The Reporter's statement of the case:

Mr. George A. King for the plaintiff. King & King were on the briefs.

Mr. Richard P. Whiteley, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.

The first question which presents itself is whether a marine officer is entitled to promotion on the retired list by reason of service on active duty since retirement under the act of June 3, 1916, 39 Stat., 183, or under the act of August 29, 1916, 39 Stat., 581, and the second question is whether he is entitled to credit for increased longevity pay by reason of said active service after retirement under said acts.

Upon the presentation of the claim of an Army officer under the act of June 3, 1916, the Comptroller decided that said act provided only for the promotion of officers on the retired list who had served a sufficient length of time on active duty, but did not entitle them to increased longevity pay by reason of such service after retirement. This decision was based upon the ground that the act of June 3, 1916, does not expressly or by necessary implication repeal or modify any part of the act of March 2, 1903, 32 Stat., 932, which provides:

"That hereafter, except in cases of officers retired on account of wounds received in battle, no officer now on the

Argument for the Defendants.

retired list shall be allowed or paid any further increase of longevity pay, and officers hereafter retired, except as herein provided, shall not be allowed or paid any further increase of longevity pay above that which had accrued at date of their retirement."

Later, upon the presentation of the claim of a retired marine officer serving on active duty after retirement, the Comptroller held that the promotion of the said officer on the retired list by reason of such active duty service was provided for in the naval appropriation act of August 29, 1916, and not in the Army act of June 3, 1916. 23 Comp. Dec. 289. This court decided in the case of Jonas v. United States, 50 C. Cls. 281, that the Marine Corps looks to Army statutes for its rate of pay and to the Navy for its laws and regulations, except where detached for service with the Army; and that section 1622, Revised Statutes, which provides for retirement of commissioned officers of the Marine Corps and says that they shall be retired in like cases and in the same manner under like conditions in all respects as are provided for officers of the Army, simply provides for the retirement of an officer of the Marine Corps, but in no way changes the jurisdiction to which he is subject or the conditions under which he may again be placed on active duty; and that when so retired the officer is subject to the laws and regulations established for the government of the Navy, R. S. 1621.

Under this decision the Judge Advocate General of the Navy and the Comptroller in his last-mentioned decision held that while a marine officer's rate of pay is regulated by Army law, his right to promotion on the retired list for active duty service after retirement is to be found in the laws established for the government of the Navy-namely, in this instance, the act of August 29, 1916, and not in the laws established for the government of the Army, act of June 3, 1916.

However the previous question may be decided, the further question remains as to whether the plaintiff is entitled to any longevity increase under either of the said acts and prior to the act of May 21, 1917, which expressly provided that such longevity should be allowed.

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