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representatives of the United States and the Netherlands Government. The Netherlands Government decided not to exercise any rights it might have had to receive the value of its property at the date of the requisition, and its claim is now based not on the requisition but rather on the arrangement as to the price to be paid which was made between Colonel Boom and General Babbitt. This arrangement constituted an agreement either express or implied in fact and is therefore clearly within the scope of the Dent Act. Baltimore & Ohio Railroad Co. v. United States, 261 U. S. 592. See also Jurisdiction of Secretary of War to Settle Contracts, etc., 1 Board of Contract Adjustment, IX, XIII; Pomilio Brothers, 1 B. C. A. 602, 619.

The claim was once reviewed by the Assistant Secretary of War. The Assistant Secretary treated the matter as a request for a revision of the award made by the board of appraisers. In his memorandum the Dent Act was not mentioned or referred to in any way. No hearing of any sort was held upon the claim prior to the decision of the Assistant Secretary. In fact at that time the claim of the Netherlands Government was pending before the Secretary of State rather than before the War Department. It follows that the action taken by Assistant Secretary Wainwright, as indicated in his letter and memorandum dated April 12, 1922, was not an adjustment or adjudication of the claim under section 3 of the Dent Act. Moreover, had it been such an adjustment, the claim might still be reconsidered. The Act directs the making of "equitable and fair adjustments and agreements." Awards under section 1 of the Act may be reopened in order to secure a fair adjustment. 32 Op. 199. Armour & Co. v. United States, 67 C. Cls. 519. Reconsideration of claims under section 3 is equally authorized.

My opinion is therefore that your first two questions must be answered in the affirmative and the third question must be answered in the negative.

Respectively,

To the SECRETARY OF WAR.

WILLIAM D. MITCHELL.

CERTIFICATION TO CONGRESS OF SUBROGATED CLAIMS

A claim covering the cost of replacing a plate-glass window presented by an insurance company which has become subrogated to the rights of the owner of the damaged property may properly be certified to Congress, under the Act of December 28, 1922 (42 Stat. 1066), for an appropriation to provide for its payment. In making the certification, special attention should be called to the fact that it is a subrogation claim by an insurer and also the attention of Congress should be drawn to the point involved so that it may receive deliberate consideration.

DEPARTMENT OF JUSTICE,

June 29, 1932.

SIR: I have the honor to acknowledge your letter of November 3, 1931, in which you request my opinion whether a claim for damages presented to you by Lipman & Esfeld, agents for St. Paul-Mercury Indemnity Company, covering the cost of replacing a plate-glass window on premises owned by Abner Krekoon, in Seattle, Washington, may be certified to Congress for an appropriation to provide for its payment under the Act of December 28, 1922 (42 Stat. 1066; U. S. C., Title 31, sec. 215). The glass was broken by a truck negligently operated by a driver who was at the time of the accident acting within the scope of his employment in the United States Customs Service.

From your letter, and the file accompanying it, I assume that you are satisfied that the glass was replaced by the Insurance Company pursuant to a policy of insurance which obligated the Company to indemnify the owner of the property against such damage. The question, therefore, is whether such a claim, which if made by the owner of the property damaged could have been certified, may properly be certified if made by an insurance company which has become subrogated to the rights of the owner to receive compensation for the damage suffered.

The statute, so far as material, provides:

"That authority is hereby conferred upon the head of each department to consider, ascertain, adjust,

and determine

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claim any

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damages to or loss of privately owned property

caused by the negligence of any officer or employee of the

Government acting within the scope of his employment. Such amount as may be found to be due to any claimant shall be certified to Congress as a legal claim for payment out of appropriations that

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Looking only at the words of the statute and considering the question without reference to practical construction or prior administrative rulings, I see no reason to doubt that the statute covers the case submitted and requires its certification. The statute by its terms grants authority to determine" any claim" and to certify the amount due "to any claimant." In acting under the statute, the head of a department is required to determine not merely the amount of the claim but the person to whom it is due, and in performing that duty to apply established principles of law. Assuming that such a statute is to be strictly construed because in derogation of the immunity of the sovereignty, a strict construction does not permit reading into the statute something that is not there or disregarding its plain terms. The words of the statute include all claims and all claimants.

Except for its immunity as a sovereign, the Government would have been liable to respond to this claim in a suit brought for the use and benefit of the Insurance Company. (American Tobacco Co. v. United States, 166 U. S. 468.) The procedural requirement in some jurisdictions that such suits must be prosecuted in the name of the insured does not qualify the fact that an insurer, having paid the loss, and being subrogated to the rights of the insured, is entitled to have and enjoy the recovery. In equity, payment to the original obligee, after notice of the transfer of the right to receive payment, does not discharge the obligation. (Monmouth Co. Fire Ins. Co. v. Hutchinson et al., 21 N. J. Eq. 107, 117; Sheldon, Subrogation, sec. 231.) This being true, the claim, upon subrogation, necessarily becomes "due to the subrogee. The practice in some States not only permits but requires insurance companies to prosecute such claims in their own names, as the real parties in interest.

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Bearing these principles in mind, it seems entirely clear that upon payment of the damage by an insurance company, and proof of this fact, you would upon plain principles of law be required to recognize the insurance company

as the claimant to whom the amount of the adjusted claim is due, within the meaning of the statute.

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Nothing in the legislative history of the Act of December 28, 1922, indicates that Congress intended to bar insurance companies from securing relief under the statute. The various committee reports do not discuss any phase of the problem. Certain statements in the debate in the House 2 show that the Members of Congress expected claims to be presented by the owners of the damaged property rather than by their tenants, but there is no suggestion that the broad terms of the Act were not intended to grant relief to claimants who under insurance contracts might become subrogated to the rights of the owners.

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In 13 Op. 182 (1870) the conclusion was reached that recovery could be allowed to an insurance company which by subrogation had acquired rights against the United States. That opinion concerned the construction of R. S. 3483 (U. S. C., Title 31, sec. 209) under which "every person who sustains damage by the capture or destruction of any vessel, railroad-engine or railroad-car while such property is in the military service shall be allowed and paid the value thereof same case considered by the Attorney General came before the courts. Suit was brought in the Court of Claims by the insurance companies in the name of the owner whom they had reimbursed for damage to a vessel impressed into service, and it was held that the action was maintainable by them. (Shaw v. United States, 8 C. C's. 488.) After further proceedings (9 C. Cls. 301, 388, affirmed, 93 U. S. 235) recovery was denied because the vessel was in the possession of her owner, performing his contract at his risk, and under these circumstances the statute did not allow recovery.

In American Tobacco Co. v. United States (32 C. Cls. 207, aff'd. 166 U. S. 468) recovery was granted to insurance companies suing in the name of their insured under R. S. 3426 (U. S. C., Title 26, section 1174) for the value of

167th Cong. Sess. 1, House Report 342 (Serial 7921);
67th Cong. Sess. 2, Senate Report 850 (Serial 7951);

67th Cong. Sess. 2, House Report (Conference) 1255 (Serial 7957).
Cong. Record, Vol. 62, Part 3, page 2298.

unused internal revenue stamps destroyed by fire. This action was under a statute limiting recovery to the owner of the property lost. The statute now under consideration provides for certification of the amount "found to be due to any claimant."

These conclusions are not affected by the provisions of section 3477 of the Revised Statutes (Title 31, U. S. Code, sec. 203), which declares transfers and assignments of claims upon the United States to be null and void unless executed with certain formalities, after the issuing of a warrant for the payment of the claim. (American Tobacco Co. v. United States, 32 C. Cls. 207, 223, aff'd. 166 U. S. 468.) This statute applies only to cases of voluntary assignment of demands against the Government, and does not embrace transfers of title by operation of law. (Western Pacific R. R. Co. v. United States, 268 U. S. 271, 275, and cases cited.) Subrogation is a transfer by operation of law of the right to receive payment of the amount due. (Connecticut Mutual Life Ins. Co. v. Cornwell, 72 Hun. 199, 201 (App. Div. N. Y.); Meyer v. Florida Home Finders, 90 Fla. 128, 130; Erwin v. Brooke, 159 Ga. 683, 685; In re Freeman & Brooks, 1 Fed. (2d) 430, 434 (C. C. A. 7), certiorari denied 266 U. S. 628, and cases cited.)

Investigation of the practice of the executive departments discloses considerable conflict and confusion in dealing with this subject. In a ruling upon a similar question arising under the Act of July 11, 1919 (41 Stat. 131), the text of which differs only slightly from the statute here involved, the Comptroller General reached the conclusion that subrogation claims by insurers should not be recognized. He disposed of the question by saying:

"The benefits of the statute constitute an exception to the common law rule that the Government is not responsible for the torts of its agents. It discloses no intent to reimburse these who by reason of their contractual liability have made good a damage sustained for which there might be a claim under the statute by the injured party."

The practice of the executive departments under the Act of December 28, 1922, is not consistent. I am informed that under the Act of 1922 no case has arisen presenting this

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