
    ROOT & CONNELL’S CASE. William Root et al. v. The United States.
    
      On the Proofs.
    
    
      The prize commissioners of a United States district court employ in 1864 gaugers to weigh and gauge the cargoes of five prizes. Tlieprizes are condemned and sold, and the proceeds distributed as decreed by the court. The gaugers fail to pre-senttheir account for services until after the decree and distribution. The district court then orders that the account be allowed, and, there being “no money subject to tlie order of this court in this cause,” that the account be a charge upon and payable out of the fund for defraying the expenses of suits in which the Government is a parly, according to the provisions of the Prize proceedings Act 30th June, 1884. (13 Stat. L., §14, p. 311.)
    A district court of the United States is without power to make the expenses incident to the sale of prize property a charge upon the fund for defraying the expenses of suits in which the United States is a party, under the Prize proceedings Act 30th June, 1884, (13 Stat. L., §14, p. 311,) if there was a prize fund upon which the expenses could have been charged. Therefore an order subsequent to a decree of distribution, reciting in the words of the statute “ that there is no money subject to the order of this cowrt in this cause,” and directing that a gauger’s account for weighing and gauging the prize cargo be allowed and made a charge upon the fund for defraying expenses, &c., is an order made without jurisdiction, and will not sustain an action in the Court of Claims.
    
      The Reporters’ statement of the case. The facts fully appear in the opinions read.
    
      Mr. Thomas J. Durant for the claimants.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney - General) for the defendants.
   DRAKE, Oh. J.,

delivered the opinion of the court:

The claimants, in November and December, 1864, and January, 1865, were employed by the.prize commissioners of the district court of the United States for the southern district of New York to perform certain work and labor iu weighing' and gauging portions of the cargoes of five different prize steamers; and the whole amount of their charges therefor was $1,379.80.

All of said vessels were condemned and sold as lawful prize, and the proceeds thereof were paid into the Treasury and distributed in the year 1865, in accordance with the decree of distribution of the district court.

The claimants did not present their accounts for said seryices to the said district court for allowance until the 18th of January, 1866, when, in each of the five cases, that court made an order such as the following, save that the amount was different in each case from that in any other:

The United States marshal admitting service of notice upon him of the presentation of the within account for costs and expenses for weighing, made in the prize suit and incident to the sale or disposal of the prize property within specified, under the orders of the prize commissioners ; and the United States district attorney appearing before me, and it appearing to the court that the said suit is finally disposed of and a decree of distribution made, and the proceeds of the prize property have been remitted into the Treasury of the United States, on motion of E. 0. Benedict, of counsel for Root & Connell, it is ordered that the said claim be, and the same is hereby, adjusted and allowed, at the sum of four hundred and twenty-eight dollars and fifty-fire cents, to said Root & Connell; and, it appearing to the court that there is no money subject to the order of this court in this cause, the costs and expenses so allowed by the court are a charge upon, and payable out of, the fund for defraying the expenses of suits in which the United States is a party or interested, according to the provisions of the 14th section of the act1 To regulate prize-proceedings, and for other purposes,’ approved June 30, 1864.” (13 Stat. L., p. 311.)

The claimants, on the 23d of January, 1866, applied to the Secretary of the Interior for payment of the amounts allowed by said court, and payment thereof was refused by that officer, whereupon they brought this suit to recover from the United States the sums so allowed.

If there is jurisdiction here of such a claim, it must be under that clause of the act establishing this court which authorizes it to “ hear and determine all claims founded upon ny law of Congress;” and the law relied on to sustain the claim, as the basis of a judgment here, must be such as imposes a liability upon the United States. The claimants, in their petition, rest their case upon .the fourteenth section of the Act June 30, 1864, il To regulate prise proceedings, and for other purposes,” (13 Stat. L.,pp. 306, 311,) under which they claim thatthe defendants are liable to them for the payment of their claim.

The decree of the district court, allowing the claims, is conclusive as to the rendition of the services and their value; so that we have no inquiry'to make on those points. The sole question before us is whether the defendants are, under said act, liable to the claimants as alleged. In determining this question, we find that a portion of the ninth section of the act, as well as the fourteenth section, bears upon it.

The two provisions are as follows:

‘‘§ 9. *■ * * The court shall make a decree of distribution, determining what vessels are entitled to share in the prize ; * * * and said decree shall recite the amount of the gross proceeds of the prize subject to the order of the court, and the amount deducted therefrom for costs and expenses, and the amount remaining for distribution, and whether the whole of such residue is to go to the captors, or one-half to the captors and one-half to the United States.”

“ § 14. That all costs and all expenses incident to the bringing in, custody, preservation, insurance, sale, or other disposal of prize property, when allowed by the court, shall be a charge upon the same, and be paid therefrom, unless the court shall decree restitution free from such charge. No payments shall be paid from any prize fund except upon the order of the court. * * * The court may at any time order the payment, from the deposit made with the assistant treasurer, in the cause, of any costs or charges accrued and allowed. When the cost is finally disposed of, the court shall make its order or orders on the assistant treasurer to pay the costs and charges allowed and unpaid; and in case the final decree shall be for restitution, or in case there shall be no money subject to the order of the court in the cause, any costs or charges allowed by the court and not paid by the claimants shall be a charge upon,, and be paid out of, the fund for defraying the expenses of suits in which the United States is a party or interested.”

After a careful consideration of these provisions we are unable to see how they impose any liability upon the Government for the services rendered by the claimants. On the contrary, it seems to us plain that they have the opposite effect.

1. In the first place, the fourteenth section expressly declares that such expenses, when allowed by the court, shall be a charge upon the prize property, and be paid therefrom, unless the court shall decree restitution free from such charge. This alone would seem to preclude judgment here for the demand of the claimants; for such a judgment would have to be paid, not out of the proceeds of the prize property, but out of the general Treasury, where no part of the prize fund, in any of the cases, now remains. When the law provides a fund out of which payment of a claim shall be made, it, in effect, excludes any other way of obtaining payment. It is a clear case for the application of the familiar maxim, “ expressio unius est exehisio alterius.” That the statute designated the fund out of which the claimants should be paid they were bound to know.

2. The act not only designates the fund, but the way in which the expenses should be paid out of it, namely, by the allowance of district court, followed by an order of payment out of the fund. This order might be made at any time while the fund was still under the control of the court, but not afterward; for the fourteenth section requires the court to make its orders of payment of all expenses then remaining unpaid, at the time when the cause is finally disposed of; and the ninth section requires that the decree of distribution shall recite the amount of the gross proceeds of the prize, and the amount deducted therefrom for costs and expenses, and the amount remaining for distribution. All this the claimants were bound to know; and it was gross laches in them not to have taken the course .indicated by the law to obtain payment of their claim out of the fund from which they might have been paid without question. They cannot thus sleep on their rights at the expense of the Government.

It is, however, claimed that the above-stated order of the district court establishes the fact that there was u no money subject to the order of the court in the cause,” and that therefore the claimants are entitled to payment out of the fund for defraying the expenses of suits in which the United States-is a party or interested. Had that court j udicially declared that there had been no money subject to the order of the court in the cause,there might be some ground for this position; but it merely declared that, at the time of making that order, to wit, the 18th of January, 1866, there was no such money. The language of the fourteenth section seems clearly to make the expenses of a prize suit a charge upon the fund for defraying expenses of suits in which the United .States is a party only when, at the final disposition of the prize cause, there is no money under the control of the court with which to pay the expenses of that cause. The causes in which these expenses accrued were finally disposed of when the decree of distribution was made in each. Then was the time when the court should have found and declared that there was no money subject to its order in the cause, out of which these expenses could be paid. To find that fact as to a day long after the money had passed out of the control of the court and been distributed under its decree, does not make tbe case in winch the expenses become a charge upon the public Treasury.

The petition of the claimants must be dismissed.

Lobing, J.,

concurring:

When this cause was partially heard here before, it was sent back to the general docket. In announcing that decision, an opinion was read on the facts as then understood, that the captured vessels had been restored to their owners, so that when the case in the district court of New York was finally disposed of there, there ivas no fund subject to the order of that court from which these bills were payable. And on that ground it was suggested, in the opinion read, that the order of the district court was valid and efficient. The points of jurisdiction were, however, expressly reserved. Now it appears that the captured vessels were adjudged lawful prize, so that there was then a fund subject to the order of the court from which these bills could have been paid, and on which they were by statute made chargeable and directed to be paid before distribution of the fund. And the question now is, on this new and different state of facts, whether the order of the district court of New York is valid and efficient here for the maintenance of this action.

It is claimed, substantially, that such order is a judgment of a court of competent jurisdiction, imparting absolute verity, and as to which “ omnia vite acta ” is to be presumed.

There are two general rules as to the effect of judgments operative in this case- The one relates to courts acting within their general jurisdiction, and this distinguishes between superior and inferior courts. For the rule, in the words generally quoted from the case of Peacock v. Bell, (1 Saunders, p. 74,) is as follows, viz: “ The rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so, and nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.”

The district courts of the United States are certainly not inferior courts, in the technical meaning of those words, and as courts of admiralty and prize they are of general jurisdiction ; and therefore their judgments, unappealed from, are conclusive as to all matters involved in them. Thus in this case, money, which by statute was payable to the claimants from the proceeds of captured vessels, is shown to have been by accident paid into the Treasury. But it was so paid upon a decree or judgment of the district court, in the exercise-of its general jurisdiction, upon a matter within that; and that judgment, being unappealed from, concludes the facts involved in it and the title of the United States to the money, under the rule stated as to the effect of the judgments of superior courts acting on matters within their general jurisdiction.

The reason of the rule stated, which thus distinguishes between superior and inferior courts as to the effect of their judgments, is the regard which the law pays to general jurisdiction and the wide powers required for its exercise, which preclude specification, and therefore in favor of such general jurisdiction of superior courts; the law supplies by its intendment all that would authorize the judgment if it appeared on its face. But as to inferior courts of special jurisdiction, no such intendment is made by the lawr, and therefore the judgment of an inferior court must support itself and show on its face all that would authorize it.

But as such iuteudment is made by the law only in favor of genera,1 jurisdiction, where such jurisdiction is not used the reason of the rule, and consequently the rule itself, ceases. And both superior and inferior courts may be, and often are, required by statute to act without and beyond their general or usual jurisdiction, and on some particular matter over which neither has an y authority except by the statute. And in such case both use only a special statute authority, and as to that both stand alike, and are therefore subject to the same rule, which is the second rule above referred to, and is as follows, viz: That where a court, either superior or inferior, is acting not within its general or usual j urisdiction, nor according to the course of the common law, but only under a specific au-thoritj' conferred on it by statute, in a matter over which it would have no authority but for the statute, then, whether the court is superior or inferior, its judgment must show on its face, affirmatively, everything that the statute makes a pre-requisite to its authority.

The American editors of Smith’s Leading Gases, after exhausting the law relating to the judgments of superior courts acting within their general jurisdiction, thus state the rule of law we are considering, (Crepps v. Dwiden, 1 Smith’s Lead Cases, 1011, 6th Am. ed,:) Whatever may be the rule with regard to courts of general powers, when acting within the scope of their . powers, it is well settled that when they do not, and exercise a special statutory authority, their proceedings stand on the same footing with those of courts of limited and inferior jurisdiction, and will be invalid unless the authority on which they are founded has been strictly pursued.” The learned editors then cites scores of cases, and make citations from judicial decisions, one of which is from 33 New Hampshire Reports, pages 228-237, as-follows: “ When a court of general jurisdiction has special and summary powers, wholly derived from statute, and not according to the course of the common law, and which do not belong to it as a court of general jurisdiction, its judgments are treated like those of courts of limited and special jurisdiction, and everything necessary to give jurisdiction must appear by the record, while everything will be presumed to be without the jurisdiction which does not appear by the record to be within it.”

The case before us is within the rule last stated and the authorities cited; for the question here is not as to the jurisdiction of the district court of New York over the prize causes in which these claims arose, and which prize causes were within its general jurisdiction, but the question is as to the jurisdiction of that court over the judiciary fund. For the petitioners’ claim is rested on the order of the district court, made the 16th January, 1866, allowing and declaring the bills' sued here to be a charge on that fund. And it is manifest that in making this order the district court of New York was not acting within its general jurisdiction as a court of admiralty and prize. For that gives them no authority to make the repairs of captured vessels a charge specially on the judiciary fund. And their only authority for any such procedure in any case is the fourteenth section of the act entitled “ An act to regulate prize proceedings,” Sea., passed the 30th Jane, 1861. And on this the petitioners’ claim they are entitled to judgment here.

The fourteenth section of the statute must be so construed as to be consistent with its other provisions and its general intent ; and by the statute only the net proceeds of prize property are to be given to naval captors, or divided between them ana the United States; and all costs and charges are to be decluctecl from the prize property, when there is any, before its distribution. And it would be inconsistent with this that such costs and charges should be made a charge on the judiciary fund, when there were proceeds of prize property from which such costs and charges could be paid, subject to the order of the court, when the captured property was adjudged lawful prize. And the fourteenth section of the statute produces no such inconsistency, when the first words of its last paragraph, i. e.,. the words u when the cause is finally disposed of,” are held to govern all its subsequent clauses, so that the last shall read as if written, “ In case there shall be no money subject to the order of the court when the cause is finally disposed of, any costs or charges allowed by the court and not paid by the claimant shall be a charge upon and paid out of the fund for defraying the expenses of suits in which the United States is a party or-interested.”

Such a construction is according to the arrangement of the paragraph in which the copulative conjunction “ and” connects what follows with what precedes it. And a prize cause is finally disposed of when the captured property is adjudged to be, or not to be, lawful prize; for that is the judgment on the merits, and then the rights of parties are fixed, and’ nothing remains to be done but the application of the judgment. And such construction makes the costs and charges a charge on the judiciary fund only when the captured property furnishes no-fund for their payment, and that, we think, was the intent of the statute, and is in itself just and proper.

If this is so, then the authority of the district court of New York to allow these bills as a charge on the judiciary fund was conditioned on the fact that there were no proceeds of the prize property subject to the order of that court when the vessels, specified were adjudged lawful prize. And this fact is not shown on the face of the judgment, and the presumption is that there were then such funds, under the rule governing the construction of judgments of courts exercising a statutory authority not within their general jurisdiction, and therefore we think that this order of the district court of New York is void on its face; and this is irrespective of the fact, shown by the evidence, that when the captured vessels were adjudged lawful prize there was subject to the order of the court over a million dollars, the proceeds of the captured vessels, from which the bills sued bore were made payable by statute. For if that fact bad been negatived on tbe face of tbe judgment, it would have been fixed for us thereby, whatever tbe evidence in tbe case might have shown.

It is observable that if this claim were allowed, then in prize causes, in which the proceeds of the prize property were divided between the United States aud the naval captors, or given wholly to such captors, the costs and charges might be wholly imposed on the United States by suits brought against them here on orders like this in question now; and that notwithstanding the statute under which this is claimed expressly makes the charges and costs in such cases a charge on such proceeds before their distribution, and distributes only the net proceeds after such charges and costs are deducted ; thus seeking to make it certain that where, as in this case, there are proceeds of the prize-property to be distributed, the charges and costs shall not be a burden to the Treasury; and applying to the distributees the equitable maxim, “ Qui senti commodum, sentire bebit onus.”

The order of the district court of New York uses the words of the statute as closely as grammatical correctness would •allow, viz, “ that there is no money subject to the order of this court in this cause,” thus recognizing the rule that requires that its jurisdiction in using this statutory authority should appear on the face of the record; and the difference of that court from our opinion is that it considered that the statute in its last clause did not refer to the time when the captured property was adjudged lawful prize, and the district court had subject to its order over a million dollars on which these bills were chargeable.

It is with great self-distrust that we express an opinion conflicting with the official action of the district court of New York, and therefore we have stated thus fully the reasons which seemed to us to require the judgment that this petition be dismissed.

As we find that this order of the district court of New York' is invalid on its face, we are not called upon to decide whether otherwise it would maintain this action here.

That the petitioners in this case rendered the services for which they seek to be paid is certain, but the question here is whether they can legally recover in this suit in this court, un-tier the rules of law which govern our action. If they cannot, they still may have recourse to that equity which Congress, has reserved to itself for cases not within our legal powers.

Millig-AN, J.,

dissenting:

This case was once before heard iu this court, aud the same points now discussed in the opinions just read were then considered and passed upon, on the same record now before us, with entire unanimity.

On the former hearing, after discussing the fourteenth section of the Act June 30, 1801, and the action of the district court of New York under it, the court proceeded to say: “ In this statement of the case it would seem, so far as the facts are developed in this record, there is nothing in the way of the payment of this claim on the order of the district court of New York. Its allowance in that court is a judicial determination of the validity and justice of the claim, and while it remains in force I know of no authority that authorizes this court to reverse it.”

In this view the cause was reminded to the general docket, with leave to the claimants to take such steps in this court, or on the orders of the prize court, to secure the payment of their judgments as they might see proper. (5 C. Cls. R., p. 408.)

They have elected to appeal again to this court, and now bring here the solemn judgments of the district court of New York as the evidence of the defendants’ indebtedness, and by the opinion of the majority they are turned out of court. And Avhy % Certainly not because the services were not rendered at the instance of the defendants, or that they were not reasonably worth the sum for which the several judgments were entered in the prize court. This much is admitted, in the opinion of the majority, as foreclosed by the decree of the district court; but the payment of the claim is denied, as I understand the opinion, because it is not warranted by the ninth and fourteenth sections of the Act June 30, 1864.

Whether my brother judges are right or wrong in the construction they have given to these provisions of the statute can make no difference whatever in the claimants’ right to recover on their judgments. Their claims, which originally rested on accounts for work and labor performed, have passed into higher evidences of debt, which constitute the real foundation of their suit in this court.

The district court, in rendering its judgments in favor of the claimants, necessarily construed the fourteenth section of the Act June 30, 1864, and entered its decree accordingly.

When this decree went down, the United States were present, a party to the proceeding, in their own court, and by their silence, at least, acquiesced in the decision. They prayed no appeal, or otherwise manifested their dissent, but rested, and still continue to rest, upon the correctness of the decree. How, then, can this court, after the lapse of years, say the decision was erroneous, or the judge who gave it was mistaken in his interpretation of the statute ?

I had thought that after the decision in Ex parte Watkins, (3 Wheat., p. 201,) if there was anything settled in the whole circle of American jurisprudence on a permanent basis, it was that the judgment of a competent court, wheu it had jurisdiction of the cause and of the parties at the time the judgment was rendered, is conclusive in all other courts, except those authorized by law to revise, alter, or reverse it.

This is a constitutional doctrine, and has been so universally recognized, that it is unnecessary to cite authorities to sustain it. It is inseparable from our national existence, and essential to the unity of our system of jurisprudence.

But this rule, it is admitted, does not apply to all tribunals which bear the name of courts. There are some “courts of a special and limited jurisdiction,” says Chief Justice Marshall, in Kemp's Lessee v. Kennedy, (5 Crunch, p. 158,) “ which are created on such principles that their judgments, taken alone, are entirely disregarded, and the proceedings must show the jurisdiction.”

But when the jurisdiction is general, the record of the judgment need not show every’- step necessary to the rendition of such judgment.

The general rule in such case is, that every presumption not inconsistent with the record is to be indulged in favor of the jurisdiction ; and the judgment, however erroneous, cannot be questioned when introduced collaterally, unless it be shown affirmatively that the court had no j urisdiction. (Harvey v. Tyler, 2 Wall., pp. 329, 431; also, Kemp's Lessee v. Kennedy, 5 Cranch, p. 175; Voorhees v. Bank of United States, 10 Peters, p. 449; Ex parte Watkins, 3 Wheat., p. 201; Grignon v. Astor, 2 How., p. 319.)

In the case before us there is no attempt to show by affirmative proof that the district court of the southern district of New York had not jurisdiction of this case ; and 1 think it entirely too clear for argument that none could hare been successfully-made. The district courts, by the very act of their organization, September 24,1789, (l.Stat. L., p. 73,) are clothed with the widest and most general jurisdiction; and the Supreme Court, from that day to this, have again and again held they had original jurisdiction in prize cases. (Jennings v. Carson's Executors, 1 Pet. Adm., pp. 9, 10; Glass v. The Sloop Betsey, 3 Dall., 6: Jecker v. Montgomery, 13 How., 517.)

Assuming, then, that the district court is a court of general jurisdiction, and that it had rightfully obtained jurisdiction of these cases, it follows, in the words of Justice Miller, in the case of Harvey v. Tyler, that u all its subsequent proceedings are valid, however erroneous they may be, until they are reversed on error or set aside by some direct proceeding for that purpose.”

But it is said, as the act of Congress provided a fund out of which the claimants might have been paid if they had not slept on their rights until this fund ivas distributed and covered into the Treasury, they cannot now obtain satisfaction of their j udg-ments out of the general Treasury.

I admit it might be a valid excuse for the accounting officers of the Treasury to refuse the payment of the claim when there was no money, appropriated for its payment ; but I cannot conceive that this would relinquish the Government’s liability. It would remain the same, especially if such claim had been ripened into a judgment of a court of competent jurisdiction.

This court was doubtlessly created, in pare, to meet just such cases as this ; and Congress wisely provides a fund, from year to year, out of which such cases can be paid, and the justice and integrity of the National Government maintained.

In Brown’s Case, (6 C. Cls. R., p. 171,) this court, after great deliberation and full examination of authorities, asumed jurisdictions of the case, which was founded onits own judgment, originally payable out of the cotton fund,” and gave another judgment, which was payable out of the general fund appropriated ' for the payment of the judgments of this court.

On the whole case, I think the claimants ought to recover.

Nott, J., did not sit in this case, and took no part in the decision.  