Opinion of the Court.

venience, the value of which can not be proved in dollars and cents or estimated by courts and juries."

The first paragraph of section 4002, Revised Statutes, provides in part as follows: "First. The mails shall be conveyed with due frequency and speed." What reference other than to published time tables can the terms "due frequency and speed" have? Where is the fact as to this mandatory provision of the law to be ascertained? From what source other than train schedules? Speed and frequency permeate the whole undertaking; it is part and parcel of the facilities which the railway company has to sell, and indeed, to the most profitable mail routes, the chief inducement for the contract of transportation. The Postmaster General believed that under the contract he possessed authority to make the claimed deductions, for, on October 2, 1905, he initiated a plan for carrying it into effect. It is true the regulations limited the deductions to specified routes, but this alone did not affect the paramount right. There has never been any doubt as to the existence of the power or that under the contract, laws of the United States, and regulations of the department it was of sufficient breadth to cover every detail of the service, obviously embraced in the very act of carrying the mails by the railroads of the country.

The railroad company accepted the readjustment contract with all the general provisions as to fines and deductions in full force and effect. It knew they became part of the undertaking and thereby assumed the obligation of carrying mails in the way and under the scheme usually and customarily adopted by railroads in the operation of their train service.

It has been often held that the failure to complete a trip or a part of the trip incurs deductions from the compensation earned for that particular trip, cases quite too familiar have sustained the power, and while the issue as to station schedules has not heretofore been before the courts, the reason for its absence is due to the fact that not heretofore has the Postmaster General exercised his authority. It was not until the subject became acute he deemed it necessary to act.



The act of June 26, 1906, supra, confirms this contention. This statute was not legislation conferring a power or authorizing an act. It was in effect a mandatory direction to the Postmaster General to do what he already had the right to do, a limitation of his discretion under section 3962 of the Revised Statutes. "The Postmaster General was authorized to do under section 3962 what he was obliged to do under the act of June 26, 1906." This, we think, is a sufficient answer to claimant's second contention. Jacksonville, Pensacola & Mobile R. R. Co. v. United States, 118 U. S., 626; Chicago, Milwaukee & St. Paul R. R. Co. v. United States, 127 U. S., 406; Minneapolis & St. Louis Ry. Co. v. United States, 24 C. Cls., 350.

The claimant company, as shown by the record, acquiesced in the deductions made, accepted the reduced compensation paid without protest or objection, except in one particular instance, and the item complained of was adjusted by the department to its satisfaction. No complaint is made as to the reasonableness of the deductions involved or as to the conduct of the department in any respect, except as to its legality.

In our view of the case the petition must be, and the same is hereby, dismissed. It is so ordered.

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


[Indian Depredation No. 74. Decided February 25, 1918.]

On the Proofs.

Indian depredations; proofs, character of.-A judgment against Indian funds will not be awarded on uncorroborated statements in ex parte affidavits. Jones v. United States, 35 C. Cls., 36, followed.

Argument for the Plaintiff.

The Reporter's statement of the case.

Mr. Harry Peyton for the plaintiff.

We desire to direct the attention of the court to the effort of the claimant to secure the taking of depositions because the claim is now largely dependent for proof upon ex parte affidavits. There is some evidence in the record from reports of the Post Office Department and contemporaneous publications corroborating and confirming the evidence taken by way of ex parte affidavits. We submit that the case is not one that should meet with disapproval by the court because of the absence of depositions taken under the rules. It is apparent that the claimant endeavored, early in this jurisdiction, to secure the taking of such depositions, but was met with the refusal of the Attorney General to appear, and further, with a distinct statement that if any depositions were taken in his absence, the Attorney General would move to strike them from the files.

Subsequently it appearing that the claimant was not a citizen of the United States on the date of the depredations, by agreement of counsel, his petition was dismissed upon this jurisdictional ground.

The claimant died before the act of January 11, 1915, which amended the Indian Depredations act so as to admit the claim to the jurisdiction of the court.

We submit that this claim is not within the Stone case, 29 C. Cls., 111; 164 U. S. 380; neither is it within the Jones case, 35 C. Cls., 36, where the court refused to award a judgment upon the sworn statement of the claimant and two ex parte affidavits. In neither of these cases are the conditions the same as in the instant case.

Here we have the evidence taken in the only form that could be used at the time it was taken, viz, by way of affidavits. Many of these affidavits were taken immediately after the depredations were committed. The circumstances attending the depredations were such that only one or two witnesses would have knowledge of a particular depredation.

Opinion of the Court.

The statute makes these affidavits competent testimony, and this court has said that where affidavits were taken within a reasonably short time after the occurrence of events, that such evidence, when presented, would commend itself to the court.

The defendants should not now be permitted to say that this evidence, made competent by statute, shall not be considered as sufficient to warrant a finding favorable to claimant, because such evidence is in the form of ex parte affidavits. Particularly is this true, when, by reason of the opposition of defendants, claimant was prevented from taking further testimony under the rules of the court. Now, after all these years, and after the witnesses have scattered, gone to parts unknown or died, whose depositions were not taken because of the opposition of the defendants, for themthe defendants-to be permitted to take advantage of this situation would be a hardship amounting practically to rank injustice.

Mr. George T. Stormont, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.

BOOTH, Judge, reviewing the facts found to be established, delivered the opinion of the court.

This is an Indian depredation claim here under the act of March 3, 1891. The plaintiff's intestate entered into a written contract on April 4, 1867, to carry the mails from Fort Abercrombie, Dakota Territory, to Helena, Montana Territory, for a period of three years, at an annual compensation of $84,000. This mail route was 1,000 miles in length. The contract was discontinued by the Government March 9, 1868, and it is for the loss of property used by plaintiff's intestate in the performance of said contract, alleged to have been stolen or destroyed by the defendant Indians, for which this suit is brought.

The case itself is typical of the class, possessing uniqueness only in the contention put forward to sustain it. The record as made up consists of 23 ex parte affidavits, certain departmental reports, and four depositions under the rules.

Opinion of the Court.

It can not be seriously contended that the depositions filed, aside from the testimony of plaintiff's intestate, are in any wise significant.

Plaintiff earnestly urges the court to substantially disregard prior decisions in cases similarly situated and award judgment in this case because of the exceptional diligence manifested by the plaintiff in the prosecution of his case, which in this particular instance was uniformly met by the resistence of the Department of Justice. In fact, it is asserted, "for them-the defendants-to be permitted to take advantage of this situation would be a hardship amounting practically to rank injustice."

The 18 affidavits filed in the Indian Office and subsequently transmitted to the court were not so filed until February 28, 1889, although they were taken in the years 1867, 1868, and 1869. Twenty-one years or thereabouts were allowed to elapse before the attention of the Government was called to this enormous loss. It is true that Ruffee, the original sufferer, attempts to excuse laches by testifying that he placed the papers in the hands of an agent or attorney-not definitely shown-for the purpose of prosecuting the case. In the ordinary course of business transactions, at least one involving a total sum in excess of $100,000, it is quite a novel proposition to attribute extraordinary diligence to a litigant who apparently seems to have allowed his agent or attorney to procrastinate for almost a quarter of a century before he calls him to account. There may be instances where one is lulled into repose for so long a period of time by an abiding confidence in his agent or attorney, but the common experience is to the contrary. Claimants with a large claim, with only prospective hopes of payment are most generally impatient and persistently inquisitive as to its final disposition. The presentation of Indian depredation claims to the Indian Office and Indian agents and superintendents in the field was quite general in extent, a well-known practice, in fact the only forum for the adjudication of claims prior to the act of March 3, 1891.

The original petition in this case was filed on March 17, 1891. The total loss claimed aggregated $100,104.60, and it

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