100 C. Cls.

and to obtain further information from the General Accounting Office was overruled April 28, 1943.

Plaintiff's petition for writ of certiorari denied by the Supreme Court December 13, 1943.

SEA GULL LUBRICANTS, INC., AN OHIO CORPORATION (TO THE USE OF THE NATIONAL ACME COMPANY AND THE LAMSON & SESSIONS COMPANY, OHIO CORPORATIONS) v. THE UNITED STATES

[No. 45081]

[99 C. Cls. 716; 321 U. S. ]

Excise tax on lubricating oils applicable to cutting oils; process of lubrication; intent of Congress; discrimination; constitutionality.

Decided June 7, 1943; petition dismissed. tion for new trial overruled October 4, 1943. Cls. 716.

Plaintiff's mo-
Opinion 99 C.

Plaintiff's petition for writ of certiorari denied by the Supreme Court February 28, 1944.

UNITED STATES LINES OPERATIONS, INC. v. THE UNITED STATES

[No. 42833]

[99 C. Cls. 744; 321 U. S.]

Transportation charges; discount provided in published tariff rates for round-trip sailings in off-season; Government entitled to rates charged to public; counterclaim; extension of lease by consent; hold-over tenancy on month-to-month basis.

Decided June 7, 1943; plaintiff's petition dismissed and defendant entitled to recover on its counterclaim. Plaintiff's motion for new trial overruled October 4, 1943. Opinion 99 C. Cls. 744.

Plaintiff's petition for writ of certiorari denied by the Supreme Court February 28, 1944.

INDEX DIGEST

ACT OF CONGRESS DIRECTING JUDGMENT.

I. Where a case has already been litigated to a final
judgment in the Court of Claims, under the
court's general jurisdiction; and where the right
to seek a review of that judgment in the
Supreme Court, also granted by a statute of
general application, has already been exercised
and such review denied by the Supreme Court;
and where the amount of the judgment awarded
by the Court of Claims to the plaintiff had been
paid to him; it is held that a special act of
Congress under which the plaintiff seeks to
obtain a second, and more favorable, judgment
from a court which has already heard, deter-
mined and rendered final judgment in the same
litigation is invalid and not binding on the
Court of Claims. Allen Pope, 375.

II. The special act (56 Stat. 1122) not only purports
to confer upon plaintiff the unusual privilege of
litigating the same case a second time in a court
which once finally decided it, and of applying a
second time for a review in the Supreme Court
of the United States, which also had once con-
sidered plaintiff's petition and denied such a
review; but the special act also purports to
decide the questions of law which were in the
case upon its former trial, and to decide also all
questions of fact except certain simple computa-
tions which the Court of Claims is directed by
the act to make, according to the formula
specified in the special act. Id.

See Pay and Allowances V.

ACT OF JUNE 25, 1938.

See Pay and Allowances I, II.

ADMINISTRATIVE INTERPRETATION.
See Pay and Allowances XIV, XV, XVI.
AMBIGUITY.

The task of giving meaning to ambiguous words in a statute falls
first upon the executive department which must put the statute
into practice, and if the meaning so given is a fair application of
the probable intent of Congress, courts should not upset that
meaning in subsequent litigation. Baldwin, 343.

100 C. Cls.

APPEAL.

See Contracts XXXVII, XXXVIII, XL.

APPLICABLE STATUTES PART OF CONTRACT.

See Contracts XLI.

APPOINTMENT TO OFFICE.

See Government Salary III.

ARBITER SELECTED BY GOVERNMENT.

See Contracts XL.

ARMY OFFICER, CONVICTION OF.

I. Conviction of Army officer of violation of section
203, Title 18, United States Code, operated to
remove him immediately and permanently from
his office, although the judgment of conviction
was appealed from, and on that appeal, was
reversed. McMullen, 323.

II. The statutory penalty of removal from office for
violation of section 203, Title 18, U. S. Code. is
applicable to an Army officer on the retired list
as well as to an officer on active duty. Id.
III. The years during which an Army officer was on
the retired list may not be included to make up
the required 40 years for retirement within the
meaning of the Act of June 30, 1882 (U. S. Code,
Title 10, section 942). Id.

IV. While a retired officer or soldier is, for some
purposes, in the military service (United States
v. Tyler, 105 U. S. 244; 16 C. Cls. 223, affirmed),
he is not in the service within the meaning of
section 942, Title 10, United States Code. Id.
V. Appointment by the President, and confirmation
by the Senate, of a successor to an Army
officer who had been separated from the service
by conviction of violation of section 203, Title
18, U. S. Code, operated as an effective removal
from office, although the judgment of conviction
was later reversed. Id.

VI. The Supreme Court has repeatedly held that the
"tenure of office" statutes, enacted by Congress
during its controversy with President Johnson
about Reconstruction policy, do not prevent
the removal of an officer by the joint action of
the President in appointing his successor and
the Senate in ratifying the appointment. See
Blake v. United States, 14 C. Cls. 462; affirmed
103 U. S. 227; and Wallace v. United States, 55
C. Cls. 396; affirmed 257 U. S. 541. Id.

100 C. Cls.

BREACH OF CONTRACT.

Where the contract placed upon the contracting officer. and the
head of the department the duty of making decisions, their
failure to do so is a breach of contract, which authorizes the
contractor to bring suit in the Court of Claims to recover any
amount to which the contractor is entitled under the contract.
See James McHugh Sons, Inc. v. United States, 99 C. Cls. 414.
Cape Ann Granite Co., Inc., 53.

CANAL ZONE, COURTS OF.

See Jurisdiction IV, VII, VIII.

CAPITAL ASSETS, SALE OF.
See Taxes I.

"CARRYING ON OR DOING BUSINESS."

See Taxes VIII, IX.
CHANGED CONDITIONS.
See Contracts IV.

CHARITY HOSPITAL.

I. It is the general rule that public charity hospitals
are not liable to patients for the negligence of
their agents even if the patients pay for the
service rendered. Powers V. Massachusetts
Homeopathic Hospital, 109 Fed. 294, cited.
Cora Washington, 491.

II. Where the plaintiff's child, born at Freedman's
Hospital, a Government institution, was "sur-
reptitously and criminally taken" from the
hospital and where it is stipulated by the parties
that the child was taken "by an unknown person
or persons without the permission or knowledge
or negligence of any of the Hospital's officers,
agents or employes"; it is held that the defendant
is not liable in a suit for a breach of contract,
where it is admitted there was no negligence on
its part, and plaintiff is not entitled to recover
in a suit for damages. Id.

CIRCUITOUS ROUTING.

See Transportation of Government Property III.
CIVILIAN EMPLOYEE TRANSFERRED.

Under the act of October 10, 1940, and the applicable regulations
issued thereunder, providing for the payment of expenses in-
curred by Government employee for the "packing, crating, dray-
age and transportation of household goods and personal effects"
of such employee when transferred from one official station to
another for permanent duty, it is held that recovery cannot be
had for the expense of "packing, crating and drayage" unless
and until such household goods are actually "transported" to
the new official station. Lobingier, 448.

100 C. Cls.

CLAIM AGAINST ESTATE.

See Taxes XX, XXI, XXII, XXIII.

CLAIM FOR REFUND.

See Taxes V, VI, VII.

CLAIM OF MERGED SUBSIDIARY.

See National Industrial Recovery Administration Act III, IV.
COMPETITIVE ROUTES.

See Transportation of Government Property II.
COMPTROLLER GENERAL, THE.

I. Where, under the Act of June, 16, 1934, (U. S.
Code, Title 41, Sections 28-33), the Comp-
troller General received, considered and passed
upon a claim which showed on its face that it
was filed more than 6 months after the prime
contract had been completed; it is held that
the Comptroller General, in effect, extended the
time for presentation of the claim, and in any
event, having authority so to extend the time,
by considering and deciding the claim he waived
any objection to late filing thereof which
might be urged in the Court of Claims. See
Thompson v. United States, 91 C. Cls. 166;
Callahan Construction Company
V. United
States, 91 C. Cls. 538.
al., 523.

Kawneer Company et

II. Under the express terms of Section 4 of the 1934
Act the Comptroller General was given abso-
lute discretion, where he considered there was
a good cause for late presentation, to consider
and decide a claim filed more than six months
after the completion of the contract. Id.
III. What constituted good cause was solely for the
Comptroller General to decide. Id.

IV. Where under Section 4 of the 1934 Act the Comp-
troller General did not hold that a claim could
not "be considered or allowed" because presented
late without good cause, the defense of late
presentation can not be made in the Court of
Claims under Section 3 of the 1938 Act. Id.

CONTRACTING OFFICER.

I. Under the provisions of article 9 of the Standard
Government Construction Contract, on the
question of the assessment of liquidated dam-
ages the findings of the contracting officer as
to the facts and the extent of delay are final
and conclusive, subject to appeal to the head of
the department, but on the question whether
or not the defendant had caused a delay for