Revocation of Order Suspending Pay-Res Adjudicata. "On account of fraud in the oath of contractor as to extra stock required for expedition, it not having been required, or he not having employed extra stock therefor, and thus not having incurred any extra expense by reason thereof, discontinue service July 31, 1881, and allow one month's extra pay on $17,162.94, the cost of the trip service."

This last order was followed up by another on July 19, 1883, in which the Postmaster-General directed a suspension of pay on said route, and, as a consequence, the amount certified as due to Voorhees for the period from April 1, 1881, to July 31, 1881, together with the one month's allowance for discontinuance of service, remain unpaid to this day.

The record does not state on what grounds the order of July 19, 1883, was made, nor do I suppose that you intend me to treat as a fact in the case the surmise, in paragraph 8 of your statement, that the order of July 19, 1883, was based "on the charges against Mr. Voorhees referred to in the order of July 9, 1881," and was intended "to await the determination of the suit which had been or was to be instituted against Voorhees for the recovery of $14,342.52, alleged to have been overpaid him on said route."

However that may be, suit was brought by the United States against Voorhees to recover back the said amount as so much money improperly and unlawfully obtained by him through the expedition order above given; the theory on which the said suit was ordered to be brought being, that Voorhees, "for his own advantage and for the convenience of the public, had all along, from the commencement of service by him on said route, performed it on a schedule of time as fast as that required by the order of expedition, and that, as no greater number of men and horses were required to perform the service on the expedited time, his affidavit was necessarily false and made for the purpose of defrauding the Government."

Voorhees demurred to the petition or complaint in the said suit, and the demurrer was sustained, and upon error this judgment was affirmed by the Supreme Court of the United States (135 U. S., 550).

Since the result of that case, application has been made to you to revoke the order of suspension made by one of your predecessors on July 19, 1883.

Revocation of Order Suspending Pay-Res Adjudicata.

The question submitted for opinion, upon this state of facts, is whether a proper case is presented for a revocation of the said order of suspension.

There can be no doubt of the correctness of the theory on which the Postmaster-General ordered suit to be brought against Voorhees, namely, that he actually employed no more men or horses in performing the expedited service than he had been theretofore employing. If such was the fact, he was defrauding the Government by receiving compensation for the increased number of men and horses authorized by the order of expedition.

Congress has spoken plainly on this subject in section 3961 of the Revised Statutes, which is as follows:

"No extra allowance shall be made for any increase of expedition for carrying the mail unless thereby the employment of additional stock and carriers is made necessary, and in such case the additional compensation shall bear no greater proportion to the additional stock and carriers necessarily employed than the compensation in the original contract bears to the stock and carriers necessarily employed in its execution."

In United States v. Barlow (132 U. S., 271), the defendant, Barlow, was held bound to refund to the United States, under section 3961, money received under an expedited schedule as payment for additional horses and men which he had never used, although they had been allowed in the order of expedition.

If the same condition of facts had been presented in the record in the case of Voorhees as in that of Barlow, the demurrer would, no doubt, have been overruled, but unfortunately the petition or complaint in the case of Voorhees contained no averment of fraud. It is true, that at the very time an expedition of his schedule was being applied for Voorhees was giving the public the increased speed under the original contract. But this he was not bound to do. He was at liberty to return to the contract at any time, and the court say that there was no allegation that Voorhees did not use the additional men and horses under the expedited schedule, or that the cost of the expedited service was excessive.

It thus appears that the charge of fraud which was, as you

Revocation of Order Suspending Pay-Res Adjudicata. assume and as was probably the case, the basis of the order of suspension, was not passed upon by the Supreme Court, and so far as the judgment on the demurrer is concerned is still undisposed of. Indeed, if the United States were to sue Voorhees again for money had and received under a fraudulent claim for service never rendered, the judgment on the demurrer would not be a bar to such a suit. As the Supreme Court say in Gould v. Evansville, etc., R. R. Co. (91 U. S., 526, 534), “if the plaintiff fails on demurrer in his first action from the omission of an essential allegation in his declaration which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same right, for the reason that the merits of the cause, as disclosed in the second declaration, were not heard and decided in the first action," citing Aurora City v. West (7 Wall., 90); Gilman v. Rives (10 Pet., 298); Richardson v. Barton (24 How., 188).

So far then from the judgment in the case of Voorhees having settled the question of fraud in his favor, that question stands now precisely as it did when the order of suspension was made.

In view of the charge of fraud in the order of July 9, 1881, it is fair to presume that the order of suspension was based, wholly or in part, on the finding of fraud in the preceding order.

But however that may be, the order of suspension was made by competent authority, and is entitled to every reasonable presumption to support it. Such an order, although of an interlocutory character, should not be vacated on an unsupported application for that purpose.

That the principle of res judicata does apply to departmental action of a final nature is well settled. Said Attorney-General Hoar (13 Opin., 35):

"Under these circumstances, I am of opinion that the deliberate decision of a former administration of a question involving private rights and interests, can not with propriety be reconsidered by its successors. No new facts are shown to exist which were not known when that decision was made. Ample opportunity has occurred for Congress, by a new provision of law, or by a declaratory act, to establish authoritatively the construction of the statute.

Ownership of Improvements on Land-Government Property.

"It was said by Mr. Wirt 'to be a rule of action prescribed to itself by each administration, to consider the acts of its predecessors conclusive as far as the Executive is concerned.' (1 Opin., 9.)

"An adherence to this rule, which has been often restated by this Department, I consider as of great importance. Without it there would seem to be no end to the number of times in which a question might be presented for reconsideration." (See also 9 Opin., 34; and 13 Opin., 388.)

I am of opinion that the principle of res judicata should also protect the order of suspension, to the extent, at least, of requiring some substantial ground to be shown for setting it aside.

I have the honor to be, very respectfully, yours,
W. H. H. MILLER.

The POSTMASTER-GENERAL.

OWNERSHIP OF IMPROVEMENTS ON LAND-GOVERNMENT

PROPERTY.

A large expenditure of money was laid out by the Government in building on a military post which afterwards was ascertained to be on land covered by a Mexican land grant, and a patent was issued by the Government to the owner: Held, That the United States had the right to remove or sell the improvements on the land so far as the right of the owner of the land was concerned: held further, that no authority exists in the President or Secretary of War to sell or dispose of the property, and that application therefor should be made to Congress.

DEPARTMENT OF JUSTICE,
December 22, 1891.

SIR: Your communication of December 15, 1891, submits for an opinion several questions, which will be stated further on, and which arise upon the following state of facts:

In October 1868, the President of the United States reserved from what he supposed to be a part of the public domain, a considerable area of land to be used in the Territory of New Mexico as a military reservation, and, accordingly, the military post known as Fort Union was established there. A large amount of money was expended on this land in buildings and other improvements necessary for a military post.

Ownership of Improvements on Land-Government Property. After these things had been done, it came to light that this supposed military reservation lay within the boundaries of a grant of land made by the Government of Mexico to one of its citizens prior to the treaty of Guadalupe Hidalgo, and embracing a district about 50 miles square.

After the conquest and the cession of New Mexico by the treaty of Guadalupe Hidalgo the said grant by Mexico was recommended to Congress for confirmation by the Secretary of the Interior, in pursuance of a report of the surveyorgeneral of New Mexico, under the provisions of the act of July 22, 1854 (10 Stat., 308); and, accordingly, Congress confirmed the said grant by an act approved June 21, 1860 (12 Stat., 71).

On March 16, 1876, the Secretary of the Interior notified the Secretary of War that the claimants of the Mora grant, as it is called, were entitled to a patent. It is said that at the time that notice was given the improvements which had been put upon the land by the Government were valued at $290,000.

On June 22, 1876, a patent for the whole Mora tract was issued by the General Land Office to the parties shown to be entitled to it under the grant from Mexico, confirmed by Congress.

In consequence of representations by the Secretary of War to the Secretary of the Interior with regard to the importance of Fort Union to the Government as a military post, and the value of the improvements there, the Secretary of the Interior reconsidered the case, and recalled and canceled the patent before it reached the parties for whom it was intended. On August 15, 1876, another patent was issued which contained the following clause:

"The United States herein expressly reserves to itself the buildings and improvements situated on the Fort Union military and timber reservations as at present established, together with the possession and use of the same, and the right to remove said buildings and improvements upon the discontinuance or abandonment of said reservation by the United States."

In other respects the second patent was the same as the first.

On August 19, 1876, the second patent was delivered by