33, 387; 15 Op. 208; 28 Op. 180; 34 Op. 250, 255. Furthermore, the Act of February 13, 1929, conferring jurisdiction on the courts to review the decisions of the Secretary of the Interior by its limitation of time for resort to the courts, carries the necessary inference that decisions of the Secretary, review of which was not sought in the courts, within the time specified, should stand. It appears to me you should proceed on the principle that the decisions of your predecessors are not to be reopened except in those cases in which resort was had to the courts under the Act of February 13, 1929, and then only the extent directed by the courts. There is nothing in the Act of February 13, 1929, or in any of the other legislation on this subject, which justifies the conclusion that the Congress intended that final decisions of your predecessors on which settlements had been closed and in respect to which no review was sought by the claimants in court, could be reopened in the future without limit as to time to make the old award conform to conclusions which the courts might reach in those cases which were appealed to them.

My conclusion is that the interest item in the Rives claim should not be allowed.

Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF THE INTERIOR.

CLAIM OF THE NETHERLANDS GOVERNMENT UNDER SECTION 3 OF THE DENT ACT

The agreement made between the representatives of the United States and the Netherlands Government concerning the price to be paid to the Netherlands Government for war materials taken over by the United States in 1917, which were to be furnished to a foreign government, is within the purview of section 3 of the Dent Act (40 Stat. 1273).

The claim, arising out of the agreement to adopt as a basis for ascertaining just compensation the costs of the supplies in lieu of the market value, is within the scope of section 3 of the Dent Act, supra.

The action taken by Assistant Secretary Wainwright, as indicated in his letter and memorandum of April 12, 1922, was not an adjustment or an adjudication of this claim under section 3 of the Dent Act, supra.

DEPARTMENT OF JUSTICE,

June 24, 1932.

SIR: I have the honor to comply with your request of April 13, 1932, requesting my opinion under the arrangements by which certain war supplies belonging to the Netherlands Government were taken over by the United States in 1917, whether (1) the taking of the supplies by the United States Government was a taking under agreement or arrangement within the purview of section 3 of the Act of March 2, 1919; (2) whether the claim, arising out of the agreement to adopt as a basis for ascertaining just compensation the costs of the supplies in lieu of the market value, is covered by section 3 of the Act of March 2, 1919; and (3) whether the action taken by Assistant Secretary Wainwright, as indicated in his letter and memorandum of April 12, 1922, was an adjustment or an adjudication of this claim under section 3 of the Act of March 2, 1919.

Section 3 of the Dent Act of March 2, 1919, c. 94, 40 Stat. 1273, reads as follows:

"SEC. 3. That the Secretary of War, through such agency as he may designate or establish is empowered, upon such terms as he or it may determine to be in the interest of the United States, to make equitable and fair adjustments and agreements, upon the termination or in settlement or readjustment of agreements or arrangements entered into with any foreign government or governments or nationals thereof, prior to November twelfth, nineteen hundred and eighteen, for the furnishing to the American Expeditionary Forces or otherwise for War purposes of supplies, materials, facilities, services or the use of property, or for the furnishing of any thereof by the United States to any foreign government or governments, whether or not such agreements or arrangements have been entered into in accordance with applicable statutory provisions; and the other provisions of this Act shall not be applicable to such adjustments."

You state that in 1915 the Netherlands Government sent to the United States a delegation headed by Colonel G. W.

H. J. Boom to purchase machine guns and ammunition. This delegation purchased 1,600 Colt machine guns, 83 special pedestals and 99,985,000 rounds of ammunition for the guns, under contracts with certain manufacturers in the United States at prices of $650.00 each for machine guns, $150.00 each for the pedestals and $40.00 per thousand for the cartridges. These war materials were delivered to the representatives of the Netherlands Government and were stored in the United States some time before December, 1917. Permission to ship these materials to Holland was not granted by the United States.

In the fall of 1917 the Italian Government requested the United States to procure for it a supply of machine guns and ammunition. A test of the material belonging to the Netherlands Government was suggested to ascertain whether it would serve the need of the Italian Government. A representative of the Italian Government agreed that if such a test were successful his Government would accept the material and pay the United States whatever the material had cost the Netherlands Government.

On November 7, 1917, three of the stored machine guns and 10,000 rounds of ammunition were requisitioned by the United States. A test was made and proved successful. On November 15, 1917, Colonel Boom conferred personally with General Babbitt, Assistant Chief of Ordnance, who informed the Netherlands representative that the remaining guns and ammunition in storage would be seized. At Colonel Boom's suggestion General Babbitt agreed to take the pedestals also. Soon afterwards the remaining guns and ammunition were requisitioned and shipped to Italy. No formal requisition was ever made of the pedestals but they were also delivered to the Italian authorities. On November 19, 1917, the State Department formally notified the Minister of the Netherlands of the requisition stating "that appropriate steps will be taken to reimburse the owner or owners of the property." It appears that there was an understanding that the Netherlands Government would not insist upon the value of the property when seized as the measure of just compensation but would accept a

reimbursement of the amount expended by it for the war materials. General Babbitt testified in his affidavit of May 14, 1918, on this point as follows:

"In reply to your telegraphic inquiry of even date herewith, with regard to the basis of the agreement between the Ordnance office and the purchasing delegation of the Government of the Netherlands War Mission concerning the payment for the ordnance material consisting of machine guns and ammunition requisitioned from said government in the month of November, 1917, the agreement as made. between the writer representing the Chief of Ordnance and Colonel Boom, head of said purchasing delegation, was that the Dutch Government would be reimbursed to the extent of the sums actually expended for the material seized, and that the incidental expenses of the mission so far as the procurement of the material was concerned would be the subject of later conference and adjustment."

Colonel Boom in his affidavit of September 30, 1931, stated that

"from his conferences with the officials of the United States Government and this letter from its State Department 19 November, 1917, it was his understanding that reimbursement meant payment to Holland of the full cost to her of these materials. It is natural that he thought that such payment would be made in florins or their equivalent." The claim of the Netherlands Government was referred to the War Department Board of Appraisers which on June 18, 1918, made award No. 33 of $5,704,646.29 with 5 per cent interest from May 31, 1918, as just compensation, "excepting the separate claim for payment in florins." On June 21, 1918, $5,720,492.53 was paid to the Netherlands Government pursuant to this award. There was an error in the computation of this figure amounting to $29,619.48. Later, another award No. 513 (as revised) was made to the Netherlands Government for the requisition of certain barbed wire amounting to $170,656.94 less the above erroneous overpayment. As payment of this latter award was tendered in dollars the Netherlands Government refused to accept it and it remains unpaid.

The commercial attaché of the Royal Netherlands Legation presented the claim to the War Department, seeking reimbursement of the cost in florins to the Netherlands Government of its purchase of these war materials. On April 12, 1922, the Assistant Secretary of War wrote the commercial attaché his determination that the claim was allowable only to the extent of the dollars actually paid by the Netherlands Government for the war materials, that certain other adjustments as to interest should be made and that a formal tender of the resulting amount would be made. In a memorandum of the same date the Assistant Secretary of War thoroughly outlined his determination and his reasons for reaching it. Nothing in this memorandum indicates that it purported to be an adjustment of this claim under section 3 of the Dent Act of March 2, 1919.

It is clear that the requisition of the war materials and the conferences and agreements at the time of the requisition concerning the price to be paid to the Netherlands were made prior to November 12, 1918. They related to war supplies which were to be furnished to a foreign government. The agreement between Colonel Boom and General Babbitt that the Netherlands would be reimbursed the cost of the materials taken rather than awarded just compensation to be measured by the value of the materials at the time of the requisitioning was just such an oral informal arrangement as is within the scope of this statute. As was stated in 33 Op. 301, in discussing the bearing of this section of the Dent Act upon the Bolling agreement:

"There breathes throughout the Act the intention to permit the Secretary of War to deal with agreements of the character described on a fair and equitable basis and without severe insistence upon the technicalities of the law."

Even if it be assumed that a requisition of such war materials would not in and of itself be sufficient to give the Secretary of War authority under section 3 of the Dent Act to adjust and settle the compensation claimed by the owner of the requisitioned property, the facts of the instant case furnish a proper basis for such an adjustment. This requisition was supplemented by an agreement between the