"(b) Are such amounts of interest included in your estimate of losses?

"(Ans.) No."

It thus appears that he did state in his claim that he had paid interest on a loan used in the production and preparation for production, although he did not state the exact amount, and did state that the interest was not included in his estimate of losses. His claim was considered in the Department of the Interior and a final decision made thereon by the First Assistant Secretary in November, 1922. His claim for losses on account of the purchase of land was disallowed. No claim for interest paid on borrowed money was made or urged or considered, and for that reason no decision was made by your predecessor on any claim for interest on borrowed.money.

Being dissatisfied with the decision of your predecessor with respect to the disallowance of the claim for net losses on account of land purchased, Rives instituted proceedings in the Supreme Court of the District of Columbia to obtain a writ of mandamus to compel the Secretary of the Interior to consider and allow his claim for losses in obtaining release from a contract he had made to buy land containing manganese. He made no effort in that proceeding to compel the Secretary to consider a claim for interest because no such claim had been urged upon or considered, or decided by the Secretary of the Interior. That case went to the Supreme Court (Work v. Rives, 267 U. S. 175) and was decided against Rives on the ground that the courts had no jurisdiction to review the action of the Secretary.

Thereafter the Act of February 13, 1929, was passed. It provided:

"That any claimant who has heretofore filed with the Secretary of the Interior within the time and manner provided by existing law a claim under said Acts generally known as the War Minerals Acts (Fortieth Statutes, page 1272, and its amendments) may within one year from the date of the passage and approval hereof petition the Supreme Court of the District of Columbia to review the final decision of the Secretary of the Interior upon any question

of law which has arisen or which may hereafter arise in the adjustment, liquidation, and payment of his claim under said Acts, but the decision of the Secretary of the Interior on all questions of fact shall be conclusive and not subject to review by any court."

On February 10, 1930, Rives availed himself of the permission to bring suit and filed his petition in the Supreme Court of the District of Columbia to review errors of law alleged to have been committed by the Secretary of the Interior in passing on his claim. He specified in his petition two items of loss which he contended had been wrongfully disallowed by your predecessor in his final decision. The first item was on account of forfeited payments and other losses in connection with the contract to purchase land. The second item set up in his petition was as follows: "Interest paid on borrowed money (a loan of $20,000 used in said operation) to November 11, 1918. This item disallowed under general rule, $178.13." So far as the record shows, that was the first time that he asserted any right to reimbursement for interest.

On March 29, 1930, you interposed an answer to this petition, admitting that Rives's original claim included an item for purchase price of property and that the Secretary of the Interior had disallowed that item, but denied that any claim had been filed with the Secretary of the Interior on account of any interest paid on borrowed money, and denied that Rives had included any such item of interest in his estimate of losses filed with the Secretary of the Interior, and denied that the final decision of your predecessor adjusting and liquidating Rives's claim had disallowed any item of interest.

The case stood in that form in the Supreme Court of the District of Columbia without trial until the Supreme Court of the United States, in decisions rendered December 7, 1931, in cases in which the Vindicator Consolidated Gold Mining Company and the Chestatee Pyrites and Chemical Corporation were parties, held that losses on account of expenditures for purchase of land and losses on account of expenditures by way of interest on borrowed money were allowable items. Thereafter, on February 3, 1932, the Supreme Court

of the District of Columbia in the pending suit by Rives against you entered a decree upon petition and answer and by consent of the parties in the following form:

"On consideration thereof and by consent of the parties, it is adjudged, ordered, and decreed:

"That the respondent, Ray Lyman Wilbur, Secretary of the Interior, be and he is hereby, authorized and directed to forthwith proceed to ascertain whether the petitioner on March 2, 1919, had incurred net losses by reason of expenditures made in the purchase of mining lands theretofore employed by him in preparing to produce and producing manganese ore in compliance with the request or demand of the Department of the Interior or other authorized agency to supply the urgent needs of the nation in the prosecution of the World War, and for which in justice and equity the petitioner is entitled to receive reimbursement from the appropriations made by Congress for the payment of such losses; and to thereupon proceed to the final adjustment of the petitioner's claim filed pursuant to the Act of Congress of March 2, 1919, Chapter 94, in accordance with the facts as determined by him."

The question now presented is whether, by virtue of this decree or otherwise, Rives's claim for interest should be allowed and paid. It will be noted that the claim does not involve any interest accrued after March 2, 1919, the date of the passage of the Relief Act.

It is obvious that the decree should not be construed to direct you to consider or allow the interest claim. An issue was raised in the pleadings in this case as to whether the Court should consider or direct you to consider and allow any claim for interest which had not been urged before your predecessor and which had never been disallowed by him, but that issue seems to have been ignored, and the decree entered by stipulation makes no mention of the subject. The decree makes specific reference to the claim for net losses by reason of expenditures made in the purchase of lands and directs you thereupon to proceed to the final adjustment of the petitioner's claim. There is nothing on the face of the decree which justifies the conclusion that the Court intended to direct you to consider the interest claim.

The general provision in the decree that you shall proceed to consider Rives's claim "pursuant to the Act of Congress of March 2, 1919," must be construed to relate to the previous provisions of the decree respecting expenditures for the purchase of land. If the interest claim had arisen because of money borrowed for use in the purchase of land it might have been plausibly contended that as the decree ordered a consideration of the loss resulting from the purchase of land such an interest claim constituted a part of it, but that argument is definitely removed from the case by the disclosure in Rives's petition filed in the Supreme Court of the District that the interest item had no relation whatever to land purchase, but arose in connection with money borrowed for use in operation.

There are other reasons, some fundamental in their nature, why the decree should not be construed to direct consideration of the interest claim. It would be an extraordinary thing if a court should entertain a petition for a writ of mandamus to compel a public official to consider a claim which had never been presented to him and which he had never disallowed. Furthermore, the Act of February 13, 1929, giving jurisdiction to the Supreme Court of the District of Columbia, only authorizes that court to "review the final decision of the Secretary of the Interior upon any question of law which has arisen or which may hereafter arise in the adjustment, liquidation, and payment of his claim under said Acts." Clearly this does not authorize the Court to consider any question of law not arising under the final decision of the Secretary. As the Secretary had never made any decision prior to the passage of the Act of February 13, 1929, or within one year thereafter respecting the interest claim, there was no question of law relating to interest on which the Court had any jurisdiction to pass. Besides these considerations, there is the fact that the Act of February 13, 1929, conferring jurisdiction on the Court, provides that the decision of the Secretary of the Interior, on all questions of fact shall be conclusive and leaves to the Court only questions of law, and as there are no findings in this case by the Secretary with respect to the interest item because the claim was never presented to or considered by 141183-32-VOL 3635

him, there was no basis for any consideration by the Court of the interest item.

Under all these conditions, the contention that the Supreme Court had power or intended to pass on the interest claim never considered by the Secretary, and asserted for the first time in the judicial proceeding, must be rejected. In the judicial proceeding, the case was not to be tried de novo. The resort to the courts allowed by law was in its nature an appellate proceeding to review decisions by the Secretary. The contention that the decree requires consideration of the interest claim is not plausible.

The question remains whether, although the decree itself does not touch the point, it is still your duty or within your power to consider and allow this interest claim. The original Relief Act provided that the Secretary "shall consider, approve and dispose of only such claims as shall be made hereunder and filed with the Department of the Interior within three months from and after the approval of this Act." That limitation has never been removed. Rives did file claim for losses within the three months period, and the question arises whether his original claim was broad enough to cover the claim for interest on money borrowed for use in operations, and, if not, whether it was permissible for him to amend his claim to include the demand for the interest after the time limited by law to file claims, but it does not seem necessary to decide that question. The final decision on Rives's claim was made by one of your predecessors in November, 1922. In an informal opinion dated March 20, 1929, I advised you that there was grave doubt whether you should or could reopen final decisions of your predecessors under the War Minerals Relief Act, and that all claimants under that Act could only proceed with safety on the theory that unless they appealed to the courts under the Act of February 13, 1929, and within the time therein specified, they would lose any right for review of the decisions of your predecessors on their claims, and it was suggested that you should not encourage claimants to believe that you could or would reopen decisions of your predecessors where review was not sought in court under the Act of February 13, 1929. In that connection see: 2 Op. 8; 13 Op.