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2. In deciding whether a tax-refund claim is subject to an amendment, the analogies of pleading are helpful, but they will not be so followed as to ignore the necessities and realities of administrative procedure.

A claim which demands relief upon one asserted fact situation, and asks an investigation of the elements appropriate to such relief, can not be amended to discard that basis and invoke action requiring examination of matters previously not germane.

302 U. S. 517.

Mr. Justice Roberts delivered the opinion of the Court.

THE CREEK NATION, PETITIONER, v. THE UNITED

STATES

[No. F-205. Decided November 9, 1936, on order of remand by the Supreme Court. Motion for new trial overruled May 3, 1937. 84 C. Cls. 12]

Certiorari to review a judgment of the Court of Claims deciding there was due the plaintiff the sum of $22,409.89 on its petition, and due the Government $76,805.51 on its counterclaim (84 C. Cls. 12) and that plaintiff was therefore not entitled to judgment in any amount.

The judgment of the Court of Claims was reversed, and the case remanded for further proceedings, January 17, 1938 (302 U. S. 620).

The court, on March 13, 1933, made special findings of fact, upon which it was decided, as a conclusion of law that the Creek Nation was entitled to recover the sum of $163,628.70, the value of 5,454.29 acres of the land involved; the amount being based on the value of the lands as of the date of the filing of the plaintiff's petition. It was also found by the court that the defendant upon its counterclaim was entitled to recover from the plaintiff the sum of $76,805.51, and judgment was entered for the plaintiff for the difference, or $86,823.19 (77 C. Cls. 159).

The Supreme Court, upon the defendant's application, granted certiorari and upon a review of the case (295 U. S., 103) reversed the decision of the Court of Claims upon the single point respecting the date as of which the value of

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the lands taken should be ascertained. Whereupon, on the rehearing of the case, the Court of Claims, interpreted the opinion of the Supreme Court to the effect that "compensation should be based on the value at that time" as referring to the act of 1891, and held therefore that the compensation of plaintiff "must, under the Court's decision, be based on the value of the lands as of the date of the approval of that act, February 13, 1891," and upon additional findings of fact fixed the compensation to be awarded plaintiff at $22,409.89, but since the amount of the counterclaim was in excess of the amount of compensation held to be due plaintiff, the petition was dismissed.

The Supreme Court (January 17, 1938) reversed the judgment of the Court of Claims and remanded the cause for further proceedings in conformity with the opinion of the Supreme Court, holding:

The court below has misinterpreted that decision (295 U. S., 103). The act of 1891 did not dispose of the lands. Its erroneous application and the consequent disposal of the lands to adverse holders constituted the taking by the United States. The petitioner is entitled to the present full equivalent of the value of the lands, without improvements, as of the date of the patents of the various parcels, if, as we assume, the patent in each instance issued promptly after the delivery of the final certificate; but if a substantial interval elapsed between the date of certificate and of patent, then as of the date of the certificate. A fair approximation or average of values may be adopted to avoid burdensome detailed computation of value as of the date of disposal of each separate tract. Mr. Justice Roberts delivered the opinion of the court.

DAVID A. WRIGHT, PETITIONER, v. THE UNITED STATES

[No. A-261. Decided February 8, 1937. 84 C. Cls. 630]

Certiorari to review judgment of the Court of Claims denying plaintiff's petition for reinstatement.

The Court of Claims decided (84 C. Cls., 630) that the special jurisdictional act, (Senate Bill 713, 74th Congress, 1st session) for reinstatement and rehearing of an adjudi

cated case, did not become a law, having been vetoed by the President, and the plaintiff's petition for reinstatement was accordingly denied.

The judgment of the Court of Claims was affirmed, January 17, 1938 (302 U. S., 583), the Supreme Court holding: The bill was presented to the President of the United States on Friday, April 24, 1936. It had originated in the Senate. On Monday, May 4, 1936, the Senate took a recess until noon, Thursday, May 7, 1936. The House of Representatives remained in session. On May 5, 1936, the President returned the bill with a message addressed to the Senate setting forth his objections. The bill and message were delivered to the Secretary of the Senate. When the Senate reconvened on May 7, 1936, the Secretary, by letter to the President of the Senate, advised the Senate of the return of the bill and the delivery of the President's message. On the same day the President of the Senate laid before the Senate the Secretary's letter and the message of the President of the United States. The message was read and with the bill was referred to the Senate Committee on Claims. No further action was taken. The bill granted jurisdiction to the Court of Claims to rehear and readjudicate petitioner's claim against the United States. Accordingly, on September 4, 1936, petitioner presented his petition for reinstatement, which was denied on the ground that the bill had never become a law. In view of the importance of the question certiorari was granted (301 U. S., 681).

The applicable provisions of the Constitution, Article 1, Section 7, paragraph 2, are quoted.

1. The first question is whether "the Congress by their adjournment" prevented the return of the bill by the President within the period of ten days allowed for that purpose; the Supreme Court holding that "The Congress" did not adjourn; the Senate alone being in recess and the Constitution creating and defining "the Congress" as consisting "of a Senate and a House." The Senate is not the Congress.

2. The recess of the Senate from May 4th to May 7th was during the session of Congress; and in returning the bill to the Senate by delivery to its Secretary during the recess there was no violation of any express requirement of the Constitution; the Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies.

3. The decision in the Pocket Veto Case (279 U. S., 655) is differentiated as not applicable for two reasons: (1) the present question was not involved, and (2) the reasoning of the decision is inapposite to the circumstances of this case.

4. The constitutional provisions have two fundamental purposes: (1) that the President shall have suitable opportunity to consider the bills presented to him, and (2) that the Congress shall have suitable opportunity to consider his objections to bills and on such consideration to pass them over his veto provided there are the requisite votes; a construction which would frustrate either of these purposes should not be adopted.

Held: "That where the Congress has not adjourned and the House in which the bill originated is in recess for not more than three days under the constitutional permission while Congress is in session, the bill does not become a law if the President has delivered the Bill with his objections to the appropriate officer of the House within the prescribed ten days and the Congress does not pass the bill over his objections by the requisite votes. In this instance the bill was properly returned by the President, it was open to reconsideration in Congress, and it did not become a law."

Mr. Chief Justice Hughes delivered the opinion of the court.

Mr. Justice Stone delivered a separate opinion, in which Mr. Justice Brandeis concurred, holding:

That "the legislation now in question did not become a law, not, as the Court holds, because the bill vetoed by the President was returned to the Senate within the ten-day period or to any person authorized to receive the bill in its behalf, but because the Senate by its adjournment prevented the return and thus called into operation the provision that the bill 'shall not be a law' where adjournment prevents its return to the house in which it originated, within the ten days allowed to the President to sign or disapprove it."

THE UNITED STATES, PETITIONER, v. ROBERT

ESNAULT-PELTERIE

[No. D-388. Decided April 5, 1937, on order of remand by the Supreme Court. Findings of fact amended April 20, 1937. 84 C. Cls. 625]

Certiorari to review a judgment of the Court of Claims that plaintiff's patent is valid and has been infringed by the United States and that he is entitled to compensation therefor under the act of June 25, 1910 (36 Stat. 851), as amended by the act of July 1, 1918 (40 Stat. 705), and section 155 of the Judicial Code.

The judgment of the Court of Claims was affirmed, January 31, 1938 (303 U. S., 26), in an opinion per curiam, stating:

Respondent (plaintiff) brought this suit to recover compensation for the use and manufacture by and for the United States of a device alleged to be covered by respondent's patent No. 1,115,795 for an invention for the control of the equilibrium of airplanes. On the first hearing the Court of Claims made special findings of fact and decided as a conclusion of law that respondent's patent was valid and had been infringed by the United States and that respondent was entitled to compensation (81 C. Cls. 785). On review by certiorari the Supreme Court held that validity and infringement were ultimate facts to be found by the Court of Claims, and as these facts had not been found, the judgment was vacated and the case was remanded to the Court of Claims with instructions to find specifically whether respondent's patent was valid and, if so, whether it had been infringed (299 U. S. 201).

The parties then moved in the Court of Claims for additional findings and the Court amended its special findings by adding the following findings of facts:

XLVIII. Claims 2, 5, 6, 7, 8, and 9 of the Esnault-Pelterie patent in suit are valid.

XLIX. The three alleged infringing airplanes of the defendant all possess the single vertical lever movable in every direction for controlling the lateral or longitudinal equilibrium of the airplane, connected to equivalent controlling surfaces having the same functional effects as those disclosed in the patent. Claims 2, 5, 6, 7, 8, and 9 of the Esnault-Pelterie patent in suit are infringed (84 C. Cls. 625).

The Court of Claims then entered an interlocutory judgment holding respondent entitled to compensation and directing that the court's previous findings, as amended, together with its opinion as theretofore announced, should stand.

Held:

Review by the Supreme Court of the judgment in such a suit is subject to the rules which have been established by Congress for the review of the judgments of the Court of Claims; that review being limited to questions of law.

In a patent case in the Court of Claims under the Act of 1910 (36 Stat. 251) the questions of validity and infringement are questions of fact. The requirement that the Court of Claims should find the ultimate facts which are controlling, places upon that court the duty of resolving conflicting inferences and to draw from the evidence the necessary conclusions of fact (U. S. v. Adams, 6 Wall. 101, 112).

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