Swift Comp an y v. United States, 105 U.S. 691

The Swift and Courtney and Beecher Company filed its p. 692petition Jan. 20,1879, in the Court of Claims, for the recovery of certain commissions alleged to be due to it on purchases of proprietary stamps under the internal revenue laws.

Section 4 of the act of July 14, 1870, c. 255 (16 Stat. 257), continued in force the same provision, directing that proprietors of articles named in schedule C, who shall furnish their own dies, shall be allowed commissions, on amounts over five p. 694hundred dollars, “ ten per centum on the whole amount purchased.”

It is met, however, in the opinion of the Court of Claims, and in argument on behalf of the government here, that the contrary construction, to pay these commissions in stamps at their face value, has been acted upon by the Commissioner of Internal Revenue from the beginning; has been acquiesced in by purchasers and dealers ; and has never been changed by Congress; and as an official practice has thus acquired the p. 695force of law ; or if not, then, at least, it was a course of dealing, well known to the appellant, and acquiesced in, by which it accepted stamps at their face value in payment of its commissions, which it is not at liberty now to open, question, and reverse.

We are of opinion that the averments of the petition, admitted by the demurrer, do not bring it within the operation of the principle invoked in the second alternative. The case made by the petition is not that of successive and independent purchases of stamps, settled for, at the time, when the commissions given by the law Were paid by the commissioner, the purchaser voluntarily accepting payment, not in money, but in other stamps ; and new dealings, of the same character, but separate as to each instance, had, afterwards, upon the same footing and by mutual understanding. On the contrary, the business was conducted upon the footing of a running account. Money was paid on account of stamps furnished or to be furnished, in sums, differing in amount, but not less in any case than $500 ; and stamps were supplied in varying quantities, as ordered, without reference to corresponding and equivalent payments of cash ; a bond with satisfactory security, in pursuance of law, having been given and accepted, to secure the government against loss, in consequence of purchases on credit. The dealing is, undoubtedly, evidence that the appellant was willing to purchase stamps, to be paid for by a credit on account, in lieu of cash for commissions; but it does not prove that he was willing to waive his right to a commission upon the stamps so purchased. And it would be incumbent on the government, in order to deprive him of his statutory right, not p. 696only to show facts, from which an agreement to do so might be inferred, but an actual settlement based upon such an understanding. The allegations in the petition, in our opinion, do npt constitute such a bar to the recovery sought, and the demurrer interposed should not, therefore, have been sustained.

This is a petition for a writ of habeas corpus to release John p. 697A. Mason, the petitioner, from confinement in the Albanypenitentiary under a sentence by a general court-martial. The facts are these: Mason was a sergeant in Battery B of the Second Regiment of Artillery, in the army of the United States. He was tried by a general court-martial on the charge of violating the sixty-second Article of War, in that “having been ordered with his battery from Washington Barracks for guard duty at the United States jail, in the city of Washington, D. C., and having arrived at said jail for said duty,” he “ did thereupon, with intent to kill Charles J. Guiteau, a prisoner then confined under the authority of the United States in said jail, wilfully and maliciously discharge his musket, loaded with ball-cartridge, at said Guiteau, through a window of said jail, into a cell then occupied by the said Guiteau.” Upon a trial duly had he was found guilty of the charge according to the specification, and sentenced “to be dishonorably discharged from the service of the United States, with the loss of all pay and allowances . . . due and. to become due to him, and then to be confined at hard labor in such penitentiary as the proper authorities may direct for eight years.” The Albany penitentiary was designated in due form as the place of confinement under this sentence.

“ All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War, are to be taken cognizance of by a general, p. 698or a regimental, garrison, or field officers’ court-martial, according to the nature and degree of the offence, and punished at the discretion of the court.”

“ No person in the military service shall, under the sentence of a court-martial, be punished by confinement in a penitentiary, unless the offence of which he may be convicted would, by some statute of the United States or by some statute of the State, Territory, or' p. 700District in which such offence may be committed, or by the common law, as the same exists in such State, Territory, or District, subject such convict to such imprisonment.”

“ Cases arising in the land or naval forces ” are expressly excepted from the operation of the Fifth Amendment of the p. 701Constitution, which provides that “ no person shall be held to answer a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” The limitation as to “actual service in time of war or public danger” relates only to the militia. Dynes v. Hoover, 20 How. 65.

The controversy in these cases arose out of an assessment of benefits for the drainage of lands in New Jersey. It was decided by the Supreme Court of that State, Dec. 1, 1880.» The Court of Errors and Appeals affirmed the judgment on the 18th of July, 1881, and the record was remitted Aug. 31,1881. On receiving the remittitur on that day, the Supreme Court entered a rule ordering it to be filed and the cause to be proceeded with according to law. Writs of error from this court to the Supreme Court of New Jersey were allowed and bonds approved Oct. 27, 1881, and on the following day were filed in the clerk’s office of the latter court. The writs of error were properly directed to the Supreme Court, because at that time p. 702the record had been transmitted to it, and was then in its possession. See Atherton v. Fowler, 91 U. S. 143, 148. But at any time before the remittitur the writs might have been directed to the Court of Errors and Appeals, because the judgment of that court was the final judgment in the cause, and until the remittitur was made it had possession of the record in contemplation of law. It is that judgment which is the subject of revision here. The plaintiff in error insists that the action of the Supreme Court, on receiving the remittitur, was the final judgment. But this is not correct. Such action was not necessary to the jurisdiction of this court. A number of instances might be cited in which, without any remittitur, a writ of error from this court has been directed to the Court of Errors and Appeals of New Jersey. This was the course in the noted cases of State of New Jersey v. Wilson, 7 Crunch, 164; Bridge Proprietors v. Hoboken Company, 1 Wall. 116; and New Jersey v. Yard, 95 U. S. 104.

In those States where the highest court does not have possession of the record, and does not render a judgment, but decides questions certified by the inferior courts, and merely issues a rescript directing the latter what judgment to render, the case would perhaps be different. But in New Jersey the record itself, or a transcript which stands for the record, is removed to the Court of Errors and Appeals, and a regular judgment is there rendered. For certain purposes, as in England on writs of error from the House of Lords, the judgment of the inferior court pending proceeding in error is supposed to be in existence. Action upon it may be brought, and, on failure to give proper bail in error, execution may be issued. But for all other purposes, when a writ of error goes to an inferior court, the Court of Errors and Appeals obtains possession of the cause and renders a formal judgment therein. If the judgment of the inferior court is reversed, the Court of Errors usually renders such judgment as ought to have been rendered, though it has the power to direct the court below what judgment to give. It is only necessary to open a book of New Jersey reports, containing decisions of the highest court, to ascertain its jurisdiction in this behalf. Thus, in 2d Zabriskie, 623, is a judgment in the case of Demarest v. Hopper, p. 703reversing the judgment of the Supreme Court in an action of ejectment, and rendering judgment for the plaintiff: and in the same book, p. 725, is another judgment of reversal in the case of Hopper v. Hopper, coupled with a judgment for the demandant in an action of dower, with a direction to the Supreme Court to award a writ of inquiry to assess the damages, and to issue execution therefor.