of this record, because the bonds were not the same in both suits; but the court admitted the record, and charged the jury that the judgment of the superior court upon the same matter, being on a bond for duties on the same importation with that which was in question in the second case, was a bar to the action. The case being taken to the supreme court of the state, the judgment was affirmed, that court holding that although there was a difference in the actions, as they were upon different bonds, yet as those bonds were parts of the same transaction, and the principal question in controversy was the same in the two cases, the matter which the plaintiff attempted to agitate in the second case was res adjudicata. A distinction was suggested between the cases on the ground that the former judgment between the parties was rendered on a demurrer to the defendant's plea. But the court answered that "it can make no difference, in principle, whether the facts upon which the court proceeded were proved by deeds and witnesses, or whether they were admitted by the parties. And an admission by way of demurrer to a pleading, in which the facts are alleged, must be just as available to the opposite party as though the admission had been made ore tenus before a jury. If the plaintiff demurred for want of form, or if for any other reason he wished to controvert the facts alleged in the plea, he might, after learning the opinion of the court, have asked leave to withdraw the demurrer and reply. But he suffered a final judgment to be entered against him. He probably thought that the facts were truly alleged in the plea, and, therefore, did not wish to amend. But, however that may be, the judgment is a bar to this action." See, also, Coffin v. Knott, 2 G. Greene, 582; Birckhead v. Brown, 5 Sandf. 134.

The plaintiff seems to consider the case of Cromwell v. County of Sac as authority for his contention that in the present action he is at liberty to show that the bonds issued were valid obligations of the municipality, notwithstanding the former adjudication against their validity. That case was brought on four bonds of the county of Sac, issued for the erection of a court-house, and coupons for interest attached to them. To defeat the action the county relied upon the estoppel of a judgment rendered in its favor in a prior action brought by one Smith upon certain earlier maturing coupons upon the same bonds, accompanied with proof that the plaintiff Cromwell was at the time the owner of the coupons in that action, and that the action was prosecuted for his sole use and benefit. It appeared on the trial in that action, and it was so found, that there were such fraudulent proceedings in the issue of the bonds to which the coupons were attached, followed by the failure of the contractor, to whom the bonds were delivered, to construct the court-house, as, in the opinion of the court, to render them void as against the county; and and there was no finding that the plaintiff had given any value for the coupons, although he had become their holder before maturity. Judgment, therefore, was given for the county, and, on appeal, it was affirmed, this court holding that the fraud and illegality in the inception of the bonds, disclosed by the findings, were sufficient to call upon the plaintiff to show that he had given value for the coupons; that the bonds were void as against the county in the hands of parties who did not acquire them before maturity, and give value for them; that the plaintiff, not having proved that he gave such value for the coupons, was not entitled to recover on them; for whatever illegality or fraud there was in the issue and delivery of the bonds equally affected those coupons. It was therefore adjudged that the finding and judgment in that case, upon the invalidity of the bonds as against the county, estopped the plaintiff in the second case from averring to the contrary, unless he obtained them for value before maturity. But the bonds being negotiable instruments, and their issue being authorized by a vote of the county, and they reciting on their face a compliance with the law providing for their issue, they were valid obligations against the county in the hands of a bona fide holder, taking them for value before maturity; and so this court said that if the plaintiff received

the bonds and coupons in suit in the second case before maturity for value. as he offered to prove, he should have been permitted to show that fact; and that there was nothing adjudged in the former action in the finding that the plaintiff had not made such proof in that case, which could preclude him from making such proof in the second case. The fact that a party may not have shown that he gave value for certain coupons before their maturity, plainly was not conclusive evidence that he may not have given value before maturity for other coupons of the same bonds, or that he may not have given value for the bonds before they came due.

There is nothing in that decision which can be made to support the contention of the plaintiff in this case. In the former action against the present defendant the adjudication was that the bonds themselves were never signed by the proper officers required by the statute of the state to sign them, and, therefore, they were not legal obligations of the township. Their invalidity equally affected the coupons attached to them, and not merely those in suit, but all others. If the plaintiff could give any evidence consistent with that adjudication there would be no objection to his doing so, and the former action would not estop him; but the bonds being found to be invalid and void, he is precluded from attempting to show the contrary, either of the fact of their wanting the signature of the county clerk, or of the law that for that reason they were not binding obligations of the municipality. The fact and the law are adjudged matters between the parties, and not open, therefore, to any further contest. Judgment affirmed.

(January 23, 1888.)


One who has enlisted as a private in the United States marine corps, and has, since enlistment, performed duty with the marine band, upon the capitol grounds or the president's grounds, under proper order, is entitled to four dollars a month in addition to his pay as private, as provided by Rev. St. U. S. § 1613, though he may not have been rated as a musician.

Appeal from the Court of Claims.

Atty. Gen. Garland, for appellant. James E. Padgett, for appellee.

MILLER, J. This is an appeal from a judgment of the court of claims awarding to John Bond, the appellee, the sum of $72.27. The following facts were found by that court, upon which this judgment was rendered in favor of the claimant, and from which the present appeal is taken: "Claimant enlisted in the United States marine corps at the marine barracks, Washington, D. C., October 29, 1879, as a private, was assigned to duty with the marine band at the time of his enlistment, and remained and performed duty with the band as a private from that time until May 1, 1881, when he was rated as a musician. Prior to this last-mentioned date he was at no time rated as a musician, although playing in the band. Between the date of enlistment and May 1, 1881, the organization known as the Marine Band' performed, under proper order, on the capitol grounds and on the president's grounds. Prior to May 1, 1881, claimant received no additional compensation for such service." Section 1613, Rev. St., reads as follows: "The marines who compose the corps of musicians known as the Marine Band' shall be entitled to receive at the rate of four dollars a month each in addition to their pay as non-commissioned officers, musicians, or privates of the marine corps, so long as they shall perform, by order of the secretary of the navy or other superior officer, on the capitol grounds or the president's grounds." In the opinion of the court of claims it is said that "the claimant was a private of the marine corps.' He was one of the marines who composed the organization known as the Marine Band.'

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He performed on the capitol grounds and on the president's grounds, under proper order, and, thus falling within the phraseology of the statute, he should have received the additional pay."

In this statement we entirely concur, and see no reason to disturb the judgment of the court, which is accordingly affirmed.

(January 16, 1888.)

APPEAL-FROM COURT OF CLAIMS-RESTRICTIONS ON-DECREE PRO FORMA. Rev. St. U. S. § 707, provides that "an appeal to the supreme court shall be allowed on behalf of the United States from all judgments of the court of claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars." The court of claims, though adverse to the claimant on the merits, rendered judgment for $597.84 against the United States pro forma, for the purpose of an appeal to the supreme court, upon a question, because it would effect a class of cases. Held, that as the effect of disposing of a case in this way, if sanctioned, would be to nullify the restriction upon appeals from the court of claims, and to make the supreme court a court of original, instead of appellate, jurisdiction, the objection in behalf of the United States to the irregularity of the action of the court of claims would be sustained. Appeal from the Court of Claims.

This was an appeal by the United States from a judgment of the court of claims upon the petition of James M. T. Gleeson, a clerk of the post-office department, claiming arrears of salary. Upon the proofs in the cause, the court of claims made a finding of facts, in substance as follows: On November 15, 1871, the claimant, by an order of the post-office department addressed to him, was "designated a railway post-office head clerk on cars between Washington, D. C., and Lynchburg, Va. Pay, $1,400 per annum." He entered upon his duties under that order, and continued to serve until May 23, 1883. Ön August 14, 1876, one of the blank printed forms, used by the department to notify railway post-office head clerks of a reduction of their pay, and copied below, was filled up by inserting the words and figures in brackets: "POST-OFFICE DEPARTMENT, WASHINGTON, D. C., August [24,] 1876. [J. M. T. Gleeson, R. P. O. Head Clerk, Washington, D. C.] SIR: The postmaster general has changed your pay as R. P. O. head clerk between [Washington, D. C., to Lynchburg, Va.,] from $[1,400] to $[1,300] per annum, to take effect on and after August 1, 1876. Very respectfully, etc., [JAMES H. MARR, Acting] First Assistant Postmaster General." On June 12, 1879, the first assistant postmaster general made an order to "reduce the pay of" the claimant and three others, "head clerks on the cars between Washington, D. C., and Lynchburg, Va., from $1,300 to $1,240 per annum, from the first to the thirtieth day of June, 1879, inclusive." The claimant received these notices and orders, and received full pay in accordance therewith. From August 1, 1876, to July 31, 1882, his salary was reduced from $1,400 to $1,300 per annum, and for the month of June, 1879, a further reduction was made from $1,300 to $1,240 per annum, the whole amount of the deductions being $597.84. The further proceedings of the court of claims appeared by the transcript certified by its clerk to this court to have been as follows: Its conclusion of law was in these words: "And upon the foregoing findings of fact, it appearing that the decision in this case will effect a class of cases, and that the statutory question involved is novel, the court decides, for the purpose of an appeal to the supreme court, that the claimant should recover the sum of $597.84." One of the judges, in behalf of the court, delivered the following opinion: "It has been the rule and usage of this court, when the determination of a new question will affect a class of cases, in none of which a claimant, by reason of the smallness of his demand, will have a right of appeal, to render a judgment pro forma against the government in one case, to the end that the question may be examined and the rights of all parties determined by the supreme court. In the present in

stance, the question is novel, and the claimants are a deserving class of officials, whose skill, diligence, and honesty affect the entire community probably more than the personal services of any other officers. If this case were to receive a final decision in this court, my own conclusion would probably be adverse to the claimant. To me it seems clear that the postmaster general had authority to reduce the claimant's compensation prospectively, whose continuation in the railway mail service must have been upon the terms prescribed; but it does not seem more clear than other class cases, which have been sent to the supreme court in the same way, and in some of which the supreme court has thought otherwise. Twenty Per Cent. Cases, 4 Ct. Cl. 227, 9 Ct. Cl. 103. The other members of the court desire to have it understood that their opinion is adverse to the claimant upon the merits, and that if any other case of this class shall be brought to a hearing before the question involved be determined by the supreme court, the decision pro forma now rendered will not furnish a precedent for a recovery. The judgment of the court is that the claimant recover of the defendant the sum of $597.84." Final judgment was entered in this form: "At a court of claims held in the city of Washington, on the twenty-fourth day of January, A. D. 1887, it was ordered that judgment pro forma, for the purpose of an appeal to the supreme court, be entered, as follows: The court, on due consideration of the premises, find for the claimant, and do order, adjudge, and decree that the said James M. T. Gleeson do have and recover of and from the United States the sum of five hundred and ninety-seven and 84-100 dollars, ($597.84.)"

Atty. Gen. Garland, Asst. Atty. Gen. Howard, and F. P. Dewees, for appellant. Robert C. Schenck, for appellee.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.

The United States can be sued for such causes and in such courts only as they have by act of congress permitted. Neither the court of claims nor this court can hear and determine any claim against the United States, except in the cases, and under the conditions, defined by congress. By section 1059, Rev. St., the court of claims had jurisdiction to hear and determine the claim of Gleeson. The jurisdiction of this court over it depends upon the provision of section 707, by which "an appeal to the supreme court shall be allowed on behalf of the United States from all judgments of the court of claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars." Congress has thus clearly manifested its will that, in any cause where the amount in controversy does not exceed $3,000, the United States alone shall have a right of appeal; and that if the opinion of the court of claims in such a cause is adverse to the claimant, a final and conclusive judgment shall be rendered against him in that court. By the existing statutes, congress has neither made, nor authorized an executive department or the court of claims to make, the appellate jurisdiction of this court, over claims against the United States for $3,000 or less, to depend upon the question whether the decision will affect a class of cases; and the omission is the more significant, because former statutes gave this court, on the certificate of the presiding justice of the court of claims, appellate jurisdiction, and the court of claims, on a submission by an executive department, original jurisdiction, of claims of such an amount, where the decision would effect a class of cases, or furnish a precedent for the future action of any executive department in the adjustment of a class of cases. Acts March 3, 1863, c. 92, § 5, (12 St. 766;) June 25, 1868, c. 71, §§ 1, 7, (15 St. 75, 76;) Rev. St. § 1063; Act March 3, 1887, c. 359, §§ 9, 12, (24 St. 507.)

In the transcript certified to this court, the judgment of the court of claims, that the claimant recover of the United States the sum of $597.84, appears upon its face to have been rendered "pro forma, for the purpose of an appeal

to the supreme court." The court's conclusion of law, which is a necessary part of the record, shows that the decision was made for that purpose, and because it would affect a class of cases, and the question involved was novel. And the opinion, which, though perhaps not strictly a part of the record, has been sent up with the record, as required by rule 8 of this court, shows that the judgment was against the unanimous opinion of the judges, and that they will not consider it a precedent for a like decision in any other case. The effect of this way of disposing of the case, if sanctioned by this court, would be to nullify the restriction put by congress upon appeals from the court of claims, to subject the United States to be impleaded in this court without their consent, to make this court a court of original, instead of appellate, jurisdiction, and to compel it to hear and determine a claim which, if the court below had performed the duty, imposed upon it by law, of applying its own judgment to the merits of the case, could not have been brought here at all. In support of such a course of proceeding in a court of first instance, the appellee relies on a passage in an opinion delivered by Chief Justice TANEY, in a case which came before this court upon a certificate of division of opinion between two judges in the circuit court, made, as the report states, "proforma, and for the purpose of obtaining the opinion of the supreme court on the points certified." The passage quoted is as follows: "We are aware that in some cases, where the point arising is one of importance and difficulty, and it is desirable, for the purposes of justice, to obtain the opinion of this court, the judges of the circuit court have sometimes, by consent, certified the point to this court, as upon a division of opinion; when, in truth, they both rather seriously doubted than differed about it. We do not object to a pratice of this description, when applied to proper cases, and on proper occasions." U. S. v. Stone, 14 Pet. 524, 525. But that opinion contains nothing to countenance the theory that the judges of a subordinate tribunal can be permitted, without considering a case themselves, to transmit it to this court for determination, and thus to shift a burden upon this court which none of the judges below will have any share in discharging. On the contrary, the chief justice went on to say: "But they must be cases sanctioned by the judgment of one of the judges of this court, in his circuit. A loose practice in this respect might render this court substantially a court for the original decision of all causes of importance; when the constitution and the laws intended to make it altogether appellate in its character, except in the few cases of original jurisdiction enumerated in the constitution." In that case this court held that it had no jurisdiction, by reason of the irregularity in the proceedings of the circuit court, and remanded the case to that court for further proceedings according to law. And in later cases brought up by certificate of division of opinion, this court has steadfastly declined to answer questions not certified in accordance with the spirit, as well as the letter, of the statutes upon that subject. Webster v. Cooper, 10 How. 54; Railroad Co. v. White, 101 U. S. 98; Jewell v. Knight, 123 U. S. 426, 8 Sup. Ct. Rep. 193. It is true that there are cases in the books, in which appeals from judgments of the court of claims, appearing to have been rendered pro forma, but no objection being taken on that ground, have been considered and decided upon the merits. Twenty Per Cent. Cases, 20 Wall. 179, 181, 9 Ct. Cl. 103, 105, 302, 314; U. S. v. Martin, 94 U. S. 400, 10 Ct. Cl. 276; U. S. v. Driscoll, 96 U. S. 421, 13 Ct. Cl. 15, 40; U. S. v. Fisher, 109 U. S. 143, 3 Sup. Ct. Rep. 154, 15 Ct. Cl. 323. But in the case at bar, the irregularity of the action of the court of claims has been objected to by the attorney general in behalf of the United States, and cannot be passed over.

Judgment reversed, and case remanded to the court of claims for further proceedings according to law.

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