INDIAN CLAIMS-Continued
XXI. The release which the Creek Nation was required by the terms of the Indian Appropriation Act of 1903 to sign in order to get the $600,000 appropriated was not binding upon the Creek Nation nor upon the appellants. The payment of a lesser sum in pur- ported discharge of a larger liquidated sum which is clearly owed does not discharge the unpaid portion of the debt. Id.
Accord and Satisfaction 23.
XXII. Under the decisions in United States v. New York Rayon Co., 329 U. S. 654, and Albrecht v. United States, 329 U. S. 599, it is held that appellants are not entitled to interest on the unpaid $600,000, which is claimed in accordance with the "fair and honorable" dealings clause of Section 2 of the Indian Claims Commission Act. Id.
INDIAN CLAIMS COMMISSION.
See Indian Claims XVII, XVIII, XIX, XX, XXI, XXII. INFRINGEMENT.
See Patents I, II, III, IV, V. JURISDICTION.
I. Under Section 3772 of the Internal Revenue Code (26 U. S. C. 3772) the failure to file with the Collector of Internal Revenue a claim for refund of taxes or penalty assessments paid under protest bars any right of recovery in the United States Court of Claims. Ertle, etc., 57.
II. The filing with the Collector of Internal Revenue of claims for abatement of tax paid under protest, which claims for abatement were denied prior to the payment of the penalty, cannot be construed as being a compliance with the statute which requires the filing of a claim for refund within a stated period after payment.
III. The Court of Claims has no jurisdiction under the Trading With the Enemy Act (40 Stat. 411, as amended, 60 Stat. 925), under the provisions of which exclusive jurisdiction is conferred on the
District Court of the United States for the District of Columbia. Braunschweiger, 289.
IV. Under 28 U. S. C. 2501, a claim of which the Court of Claims has jurisdiction is barred unless filed within
6 years after such claim first accrues.
See also Eminent Domain XXIX; Suit for Salary XV. JUST COMPENSATION.
I. Where plaintiff's petition alleges that on October 8, 1942, during World War II, the United States, through the War Production Board, issued an order classifying plaintiff's gold-mining property as a "nonessential mine" and requiring that the mine be closed, and it was closed on January 18, 1943; and where the order was revoked on June 30, 1945; it is held that the order closing plaintiff's mine did not result in the taking of plaintiff's property for public use, for which the Government would be liable under the Fifth amendment, and plaintiff's petition does not set forth a cause of action. Defendant's de- murrer is sustained. Oro Fino Consolidated Mines, Inc., 18.
II. The United States had no intention of keeping plain- tiff's mine closed permanently. The order closing nonessential mines was a wartime measure, designed and intended to divert gold miners into the more essential field of copper mining. Id.
III. The use and enjoyment of property may, under proper circumstances such as war necessities, be regulated or restricted or even temporarily suspended in order to protect the whole public, without making the Government liable for just compensation. Id.
IV. In the instant case the Government did not take over or use plaintiff's property; it did not take any gold. Title and possession remained in plaintiff, as before. The Government merely forbade, for the time being, the mining of gold. If this had the effect of depriv- ing plaintiff temporarily of the only interest it had in
JUST COMPENSATION-Continued
the land, and if because plaintiff's interest was not in fee but was for a definite duration, it made that interest less valuable, these adverse effects were inci- dents not so much of the Government order as of the kind of ownership which plaintiff had. The Govern-
ment is not liable for such effects. Id.
See also Eminent Domain I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, XXVI, XXVII, XXVIII, XXIX, XXX, XXXI, XXXII, XXXIII, XXXIV, XXXV, XXXVI, XXXVII, XXXVIII, XXXIX, XL, XLI.
See Overtime Pay XII; Suit for Salary II, III, VII, VIII. LEND-LEASE ACT.
I. Where in April 1943, the plaintiff entered into a licens- ing agreement with the Government of the United States under which the plaintiff licensed the Govern- ment to procure and transfer to the Union of Socialist Soviet Republics plaintiff's information and facilities relating to a petroleum-treatment process on which the plaintiff held patents and possessed the necessary "know-how"; and where the Government agreed to pay, and did pay, to plaintiff a lump-sum royalty of $25,982.50 for the privilege of the use and operation of the plant erected in Russia in 1946 for a period of 18 months; and where, before the expiration of the 18-month period, the United States Government, under the terms of its agreement, notified the plaintiff that it elected not to make use of its option to extend the license further and notified the Soviet Govern- ment that its right to use the processes in question under the Lend-Lease Act would expire on March 5, 1948; it is held that the continued use of plaintiff's patents and processes, without payment, by the Soviet Government after the expiration of the licens- ing agreement does not constitute a breach of con- tract by the United States and plaintiff is not entitled to recover. Stratford Development Corp., 44. United States
II. Section 7 of the Lend-Lease Act, under which the licensing agreement between plaintiff and defendant was made, provided that in all such contracts or agreements the agents of the defendant should "fully protect the rights of all citizens of the United States
who have patent rights in and to" any articles or information which were to be disposed of under the Act. In the instant case the taking by the Govern- ment of the promise of the Soviet Government, under Article IV of the Mutual Aid Agreement, which article was quoted and incorporated in plaintiff's license agreement with the defendant, was compliance by defendant with Section 7 of the Lend-Lease Act. Id.
III. By Section 7 of the Lend-Lease Act Congress did not require the Government to agree to indemnify the plaintiff against the Soviet Union's default. Con- gress required that the Government take from the Soviet Union its promise to pay the plaintiff royal- ties if the Soviet Union continued to use plaintiff's patents after the expiration of Lend-Lease, which was the only practical thing for the Government to do in the circumstances. Id.
IV. Section 7 of the Lend-Lease Act was applicable to all of the countries eligible for assistance under its provisions. Congress would naturally have expected that the allies of the United States would, after the war, do what they agreed to do and hence would have regarded the taking of their promises to pay as a sufficient guaranty of performance. United States 58.
V. The plaintiff, when it licensed the United States Government to ship its patented devices and disclose its "know-how" to Russia, was as fully aware as was the Government that there were no means, other than diplomatic, to induce or compel the Soviet Union to do what it agreed to do. On the evidence the Court concludes that the United States Government has done by diplomatic means all that could usefully be done, though without result. It is held that the United States has not breached its contract with the plaintiff and plaintiff is not entitled to recover. Id.
LICENSE OF PATENT.
See Patents I, II, III, IV, V.
I. Where plaintiff's petition states that his action is brought pursuant to the Lucas Act (60 Stat. 902) on account of losses incurred by him as a subcon- tractor on two contracts and a prime contractor on a third contract for work at various airports, it is held that the documents filed by the plaintiff, or on his behalf, with the Civil Aeronautics Authority before August 14, 1945, did not satisfy the require- ments of Section 3 of the Lucas Act as construed by the Supreme Court in the case of United States v. Fogarty, 340 U. S. 8. Demurrer sustained and petition dismissed. Pennington, 610.
II. Two of the documents referred to in plaintiff's petition are not requests for relief, either under the First War Powers Act or otherwise, but were forms filled out by the plaintiff at the request of the Government for statistical purposes. Id.
III. The claim filed by plaintiff's prime contractor, in plaintiff's behalf, in connection with another sub- contract, constituted an assertion of right, a claim for breach of contract, not a request for relief as a matter of grace within the contemplation of the Lucas Act. Id.
MISSING PERSONS ACT.
I. In a suit under the Missing Persons Act of March 7, 1942 (50 U. S. C. App. 1001-1015), where it is shown that plaintiff, an officer in the Philippine Scouts, a part of the Army of the United States, was taken prisoner by the Japanese Army on April 9, 1942, and held as a prisoner of war until June 28, 1942, when he was released on parole; it is held that the final determination of the Commanding General that the plaintiff was not in a casualty status during the period in question, October 1, 1942, to January 1, 1945, was conclusive, and plaintiff is not entitled to recover. Moreno, 30.
II. The departmental determination that the plaintiff was not in a casualty status during the period in question was not arbitrary or capricious. Id.
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