concurring:
I concur fully with the Chief Judge’s opinion but with relation to the portion of the case to which a partial dissent has been filed, I must point out that the rule on which the partial dissent relies is subject to qualifications. In the very case cited by the dissent, Ralston Steel Corp. v. United States, 169 Ct. Cl. 119, 340 F. 2d 663, cert. denied, 381 U.S. 950 (1965), this court referred to certain qualifications in footnote 4 on page 125 of said case as follows:7
On the qualification of non-frivolity and substantiality, see Montana Catholic Missions v. Missoula County, 200 U.S. 118, 130 (1906) ; The Fair v. Kohler Die & Specialty Co., supra, at 25 ; Levering & Garrigues Co. v. Morrin, supra, at 105-06 ; Bell v. Hood, supra, at 682-83 ; Montana-Dakota Utilities Co. v. Northwestern Public Service Co., supra, at 249.
The alleged contractual claims in part I were clearly not substantial. The dissent found no “difficulty” in agreeing with the majority on part I. In Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106 (1933), the Court defined “unsubstantial” as being
*753* * * obviously without merit, or “because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 ; McGilvra v. Ross, 215 U.S. 70, 76-77, 80 ; Norton v. Whiteside, 239 U.S. 144, 153 ; Bianchi v. Morales, 262 U.S. 170 ; Kansas v. Bradley, 26 Fed. 289, 290 ; Harris v. Rosenberger, 145 Fed. 449, 452.
The tortious claims were clearly beyond the jurisdiction of this court. Tort cases brought in this court naturally lack substantiality as far as the jurisdictional reaches of this court are concerned because the previous decisions of this court clearly prohibit such actions.
The full citations for the following cases In the quoted footnote are: The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913) ; Bell v. Hood, 327 U.S. 678, 682-83 (1946) ; Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249 (1951).