Petition for a Writ of Certiorari — Olweiss v. United States

LOU NATHANSON, AS PLAINTIFF IN No. 12673,

UNITED STATES OF AMERICA, AT THE RELATION

OF AND TO THE USE OF LOU NATHANSON VS.

BAKER-LOCKWOOD MANUFACTURING COMPANY,

INC., ET AL., PETITIONER,

VS.

UNITED STATES OF AMERICA, APPELLANT IN CASES:

No, 12673, UNITED STATES OF AMERICA, APPELLANT,

VS. LOU NATHANSON (PLAINTIFF IN UNITED

STATES OF AMERICA, AT THE RELATION OF AND TO

THE USE OF LOU NATHANSON VS. BAKER-LOCK-

WOOD MANUFACTURING COMPANY, INC., ET AL.),

BAKER-LOCKWOOD MANUFACTURING COMPANY,

INC., ACORPORATION, ET AL., APPELLEES; No. 12674,

UNITED STATES OF AMERICA, APPELLANT, VS.

BAKER-LOCKWOOD MANUFACTURING COMPANY,

INC., ET AL., APPELLEES; AND No. 12675, UNITED

STATES OF AMERICA, APPELLANT, VS. BENJAMIN P.

PINK (PLAINTIFF IN UNITED STATES OF AMERICA

EX REL. BENJAMIN P. PINK AND BENJAMIN P. PINK

IN HIS OWN BEHALF VS. BAKER-LOCKWOOD MANU-

FACTURING COMPANY ET AL., APPELLEES),

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR

TRE EIGHTH CIRCUIT WITH MEMO-

RANDA IN SUPPORT THEREOF.

*

7 J. Francis O’SULLIVAN,

J Maurice J. O’SULLIVAN,

700 Gloyd Building,

Kansas City 6, Missouri,

Counsel for Petitione;.

INDEX

Petition for Writ of Certiorari

Summary and Statement of Matters Involved

Opinions Below

Statutes Involved.

Statement of Basis of Jurisdiction

Questions Presented for Decision

Reasons Relied On for Granting of Writ:

(1)

(2)

(3)

(4)

(5)

To vindicate and maintain the legislative su-

premacy to determine policies and to limit the

activities of executive departments, as but

lately adjudicated on January 18th, 1943, in U.

S. ex rel. Marcus vs. Hess a

To vindicate and maintain the dignity and con-

stitutional finality of the decisions of this Court

and the constitutional authority of this Court

to require observance thereof by executive de-

partments and courts of inferior jurisdiction

To vindicate and maintain the constitutional

separation of the powers of government as sus-

tained and declared in U. S. ex rel. Marcus vs.

Hess, and to quash coram non judice proceed-

ings on appeal purporting to confirm usurpa-

tion by the Department of Justice of the power

to control qui tam actions, after that power

was denied with finality by adjudication of

this Court 1

To vindicate and maintain the finality of th

authority of this Court to prohibit usurpation

by an executive department of powers re-

served to legislative authority after definite

adjudication denying the exi.tence of such

powers

To vindicate and maintain the constitutional

denial of authority to impair the obligation of

— lawfully entered into by the United

—ͤͤ A——

avo &

II

(6)

(7)

(8)

(9)

(10)

(11)

INDEX

To vindicate and maintain the faith and credit

of the United States and to quash a decision

renouncing the contractual obligations of the

United States arising from the timely and ex-

act acceptance of a statutory offer made bind-

ing upon the United States by enactment of

the supreme legislative authority and ap-

proved by the highest executive authority, and

but lately construed and sustained by this

6——

To prevent judicial fiat on appeal interpolat-

ing into the False Claims Statutes a nonex-

istent provision to grant governmental control

over the institution and prosecution of qui tam

actions. This Court within the year had de-

nied the existence of such power and sug-

gested that recourse was to the legislative

forum. The decision contravenes the latest

expressions of this Court in U. S. ex rel. Mar-

. ⁰ ü ce ocean

To determine that the single cause of action

created by the False Claims Statutes was ap-

propriated when petitioner first filed his suit

to recover the statutory sanctions for frauds

against the United States. The statute as here

construed clearly excludes any later suitors

from control

To decide that the Government, under all the

authorities found, was not a party to peti-

tioner’s case, and had no right to file the mo-

tion to stay that action.

To decree that neither the defendants nor the

Government filed any notice of appeal from

the order entered by the District Court in peti-

tioner’s case granting him right of trial of the

single statutory cause of action

To settle that when the common statutory

offer extended alike to all citizens by the False

Claims Statutes was accepted by petitioner, by

filing his qui tam action prior to any similar ac-

15

15

16

— —

INDEX III

tion, and he incurred liability for and paid

costs and actively prepared his case for trial,

the Eighth Circuit’s decision on appeal unlaw-

fully deprived him of vested quasi-contractual

statutory rights and of “due process of law”

and equal protection of laws under the Fifth

Amendment to the Constitution of the United

States 17

Conclusion ——-__—_—---—-——_-_____---_--—----— . &

Appendix 27

TABLE OF CASES

Burrell vs. United States, (C. C. A. 9) 147 Fed. 44, 46 24

Carter vs. Powell, (C. C. A. 5, 1939) 104 F. 2d 428.

rehear. den. 104 F. 2d 1012, cert. den. (1940) 60 8.

Ct. 173, 308 U. S. 611, 84 L. Ed. 511 16

Chlupsa vs. Posvic, (C. C. A. 7, 1940) 113 F. 2d 375 16

Confiscation Cases, 7 Wall. 454, 19 L. Ed. 3 23

Coombes vs. Getz, 285 U. S. 434, 76 L. Ed. 8666 22

Dismuke vs. United States, 297 U. S. 167, 80 L. Ed.

560, 1. c. 566. 20

Francis vs. United States, 5 Wall. (U. S.) 338, 18 L.

Ed. 603 14

Livingston vs. Dorgenois, 3 L. Ed. I. c. 448 15

Lynch vs. United States, 292 U. S. 571, 577, 78 L. Ed.

1434 21, 24

Shuey vs. United States, 92 U. S. 73, 23 L. Ed. 697 20

Stretton vs. Taylor, 1 Leo. 119, 74 Eng. Rep. 111

(1588/89) 20

Tex-O-Can Flour Mills vs. United States, 49 F. Supp.

516, 1. c. 522, 523

United States vs. Connor, 138 U. S. 61, 34 L. Ed. 860. 21, 23

United States vs. B. F. Goodrich Co. et al., (D. C. N.

T.) 41 F. Supp. . L c. SS 15, 23

United States vs. Griswold, 26 Fed. Cases, p. 42, No.

15266, 24 Fed. 361 (1885), affd. 30 Fed. 361 (1887) 17, 23

United States ex rel. vs. Hendrick, 52 F. Supp. 60, 61

(1) Adv. Sh. 12-6-43 ib 15

—

1 INDEX

United States ex rel. Marcus vs. Hess, 317 U. S. 537, 87

L. Ed. 374, 378 5, 6, 8, 9, 15, 18, 24

United States vs. Powellson, 87 L. Ed. 979 24

United States vs. Thomasson, 4 Biss. 336, Fed. Cases

No. 16479 (1889) 23

Wilson vs. United States, 135 F. 2d 1005. 19

TEXTBOOKS AND COMMENTARIES

6 Bacon’s Abridgment of the Law 1144 1

Bacon’s Abridgment of the Law, Pardon B......._ 23

1 Bishop’s Criminal Law, Secs. 909, 911111 18

... 18

, . .. 18, 22

3 Coke Institute 238 21

11 Coke 66b 20

Comyn’s, A Digest of the Laws of England, Sub. nom.

Pardon F 23

Wharton, Criminal Pl., Sec. 528 18

Year Book 1, e VII, fol. 3a (Mich. T. Plea 2

(1485) ) a 19

STATUTES

U. S. C., Title 31, Secs. 231-235, Revised Statutes 3490-

ee 2, 5, 6, 18, 27-28

a Bae Title 18, Sec. 80, Revised Statutes, Sec.

5433 2, 5, 6, 28

U. S. C., Title 28, Sec. 227, Judicial Code, Sec. 129. 7, 12, 17

U. S. C., Title 28, Sec. 347 (a), Judicial Code, Sec. 240

(a) 5

House Resolution 1203: Congressional Record

7/7/43, pp. 7403 et seq., 7/8/43, pp. 7515 et seq., and

9/17/43 7693 et seg.

Court RULES

Federal Rules of Civil Procedure, Rule 15 (a) (c)

Federal Rules of Civil Procedure, Rule 73 (b)

Supreme Court Rules, Rule 38

Supreme Court of the United States

OCTOBER TERM, 19.

LOU NATHANSON, AS PLAINTIFF IN No. 12673,

UNITED STATES OF AMERICA, AT THE RELATION

OF AND TO THE USE OF LOU NATHANSON VS.

BAKER-LOCKWOOD MANUFACTURING COMPANY,

INC., ET AL., PETITIONER,

VS.

UNITED STATES OF AMERICA, APPELLANT IN CASES:

No. 12672, UNITED STATES OF AMERICA, APPELLANT,

VS. LOU NATHANSON (PLAINTIFF IN UNITED

STATES OF AMERICA, AT THE RELATION OF AND TO

THE USE OF LOU NATHANSON VS. BAKER-LOCK-

WOOD MANUFACTURING COMPANY, INC., ET AL.),

BAKER-LOCKWOOD MANUFACTURING COMPANY,

C., A CORPORATION, ET AL., APPELLEES; No. 12674,

UNITED STATES OF AMERICA, APPELLANT, VS.

BAKER-LOCKWOOD MANUFACTURING COMPANY,

INC., ET AL., APPELLEES; AND No. 12675, UNITED

STATES OF AMERICA, APPELLANT, VS. BENJAMIN P.

PINK (PLAINTIFF IN UNITED STATES OF AMFRICA

EX REL. BENJAMIN P. PINK AND BENJAMIN P. PINK

IN HIS OWN BEHALF VS. BAKER-LOCKWOOD MANU-

FACTURING COMPANY ET AL., APPELLEES),

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR

THE EIGi:TH CIRCUIT WITH MEMO-

RANDA IN SUPPORT THEREOF.

Petitioner respectfully prays that a writ of certiorari

issue to review the opinion and judgment of the United

| I

States Circuit Court of Appeals for the Eighth Circuit,

entered September 29th, 1943, which reversed and di-

rected the District Court for the Western Division of the

Western District of Missouri (a) to stay petitioner’s qui

tam action; and (b) to accord precedence to a similar

action on the same facts but filed by the United States

two days after petitioner’s suit was filed.

SUMMARY AND STATEMENT OF THE MATTERS

INVOLVED.

Petitioner’s qui tam action was filed February 13th,

1943, to recover double damages and penalties from de-

fendants under Secs. 3490-3494 and 5438, Revised Statutes,

31 U. S. C. 231-235, and 18 U. S. C. 80, for false claims

against the United States on contracts made with the

Army Air Corps (N. R. 1). Two days later, the District

Attorney filed a similar action in the same court for the

United States, seeking the same recovery (G. R. 1). One

Pink later filed a qui tam action on the same facts on

February 17th, 1943. He did nothing further (P. R. 1-14).

That case presents no issue.

Petitioner’s complaint was amended and a new de-

fendant added before responsive pleadings were filed, as

authorized by Rule 15 (a) (c) F. R. C. P. (N. R. 3-7).

Defendants Baker-Lockwood Manufacturing Com-

pany, Inc., and W. L. Mellor, on March 23d, 1943, filed

separate motions to dismiss the three pending cases and

to stay proceedings in at least two of them (N. R. 10;

G. R. 4-5 and 8; P. R. 6). They urged that since there was

but one cause of action under the statute, defense of

three cases should not be required.

References to the Transcript of the Record in Case No. 12673

below are cited by the designation N. R.; those in No. 12674 by

G. R.; those in No. 12675 by P. R.; and the additional and sup-

plemental Appellate Court record by A. R.

—

3

The day before these motions were to be heard, the

Government filed motions to stay proceedings in all three

cases, until after the trial of a related criminal case

(N. R. 8). No notice of the motions was given to any

party and no briefs in support were filed, as required by

local rule (N. R. 8).

The Government’s motions were overruled (N. R.

10). The trial court staied that if trial was had on the

date then set, the erim nal case would be first tried

(N. R. 14).

Defendants’ motions o dismiss and to stay in peti-

tioner’s case were overruled. Like motions in the United

States and Pink cases were sustained. The trial court

held that petitioner’s prior action appropriated the singie

cause of action created by the statute (N. R. 10).

The criminal fraud case was thereafter continued

twice, first, for a new indictment, and later because the

presence of material witnesses was prevented by the

Government (N. R. 13). Petitioner’s case was definitely

set for trial on October 4th, 1943 (N. R. 14), for which

petitioner and his counsel diligently prepared.

The Government filed a purported appeal in peti-

tioner’s case (to which it was not a party), which was

limited to the order of April 10th, 1943, denying the

application of the United States to stay proceedings pend-

ing the criminal trial (N. R. 12). There was no appeal

from the order of April 15th, 1943, denying defendants’

motions to stay, and permitting petitioner’s case to pro-

ceed (N. R. 12).

A preliminary motion to order stay of the trial of

petitioner’s case pending the Government’s appeals, was

denied by the Circuit Court of Appeals (N. R. 22).

On filing transcripts of the record in the Circuit Court

of Appeals, petitioner moved to dismiss the purported ap-

peal ot the United States in his case because (1) there

was no statutory or other right to review District Court

decisions which were not final, except in proceedings for

injunction, etc.; (2) the denial of the Government’s mo-

4

tion to stay was not an injunctive nor a final order; (3)

the Government was not a party to petitioner’s case and

had no right to appeal or to file a motion to stay it, and

neither defendants nor the Government appealed from the

order denying defendants’ motion to stay; (4) because the

Government’s motion to stay did not allege facts authoriz-

ing the relief prayed; (5) that the Rules of Civil Pro-

cedure and local rules were disregarded by the United

States, in failing to serve a copy of the motion or a mem-

orandum brief; and (6) that the appeal was not in good

faith in the usual course of judicial proceeding, but for

mere delay while the Department of Justice sought en-

actment of House Resolution 1203 (A. R. 6; Cong. R.

7/7/43, pp. 7403 et seq., 7/8/43, pp. 7515 et seq., and

9/17/43, pp. 7693 et seq.).

There was no direct ruling on petitioner’s motion to

dismiss the appeal. The District Court order of April

10th, 1943, overruling the Government’s motion to stay

pending trial of the criminal case, was affirmed. The

three cases were remanded with directions (a) to stay all

proceedings in petitioner’s case and in the Pink action;

and (b) to grant the Government precedence in the trial

of its civil action filed two days after the single statutory

cause of action had been appropriated by the filing of

petitioner’s case (A. R. 23.).

OPINIONS BELOW.

The District Court’s opinion (holding petitioner, by

filing the first suit under the False Claims Statutes afore-

said, had appropriated the sole cause of action created

thereby, to the exclusion of subsequent suitors, including

the Government) is printed at N. R. 10. The Circuit

Court of Appeals’ opinion reversing the District Court

(A. R. 44.) is reported in 138 F. 2d 48.

*This is demonstrated by the text of the private letter addressed

to the trial court by the Attorney General (A. R. _G_).

5

STATUTES INVOLVED.

The statutes involved are Revised Statutes, 3490-3494

and 5438, 31 U. S. C. 231-235, and 18 U. S. C. 80. They

appear in the appendix, pp. 27-29.

JURISDICTION.

The decision of the Eighth Circuit Court of Appeals,

for which review is sought, was entered September 29th,

1943 (A. R.24.). Motion to stay the mandate pending

petition for certiorari filed October 13th, 1943 (A. R.24.)

was denied October 25th, 1943 (A. R. 29°).

The jurisdiction of this Court is invoked under Sec-

tion 240 (a) of the Judicial Code as amended by the Act

of February 13th, 1925, and the Act of March 8th, 1934

(28 U. S. C. A., Sec. 347 (a)), and Rule 38 of this Court,

in that the Circuit Court of Appeals (1) decided impor-

tant questions of substance and of public concern which

are of special importance in the public interests and con-

trary to and which nullify the adjudication of this Court

in United States ex rel. Marcus v. Hess, 317 U. S. 537,

87 L. Ed. 374, in that (a) the decision granted to the At-

torney General the power of control over the institution

and prosecution of qui tam actions under the False Claims

Act which is now fully usurped in this and other Cir-

cuits despite the direct ruling of this Court in the Marcus

case that he did not possess such power; and (b) it nul-

lified the finality of adjudications of this Court and the

authority of the Congress to determine the policies to pro-

tect the United States against war frauds, which this

Court declared and sustained in the Marcus case, and trans-

ferred it to the executive branch; (2) decided importan:

questions of Federal substantive law and procedure which

have not been, but should be, settled by this Court, in

that, (a) the decision impaired the obligation of the law-

ful statutory contract offered by the False Claims Act and

—

6

accepted by petitioner by filing his prior qui tam action

and incurring expense and obligation thereby, and (b)

thereby denied petitioner due process of law and equal

protection of laws contrary to the Fifth Amendment ot

the Constitution of the United States; and (3) the de-

cision so far departed from the usual and accepted course

of judicial proceedings as to call for an exercise of this

Court’s power of supervision (a) because jurisdiction was

exercised on appeal without statutory or other right in

reviewing and reversing District Court orders which were

not final and not of injunctive nature, and (b) because

the decision reversed the order denying a stay of peti-

tioner’s action, from which neither defendants nor the

Government appealed, and (c) jurisdiction was exercised

to reverse petitioner’s case on an appeal of the United

States, which was not a party to the action, and (d) be-

cause due process of law and the right to be heard was

denied petitioner by the denial of a trial of his case, which

first appropriated the cause of action created by the False

Claims Statutes.

QUESTIONS PRESENTED.

1. Where two days before the Government filed a

similar action, petitioner had already filed a qui tam ac-

tion for and in the name of the United States to his use,

to recover the statutory damages and penalties from de-

fendants as authorized by the False Claims Statute,’ did

the decision of the Eighth Circuit Court of Appeals, on a

purported appeal by the United States from a procedural

order, err in ruling contrary to the adjudication of this

Court in Marcus v. Hess:*

(a) That the False Claims Act granted to the At-

torney General of the United States the sole and absolute

331 U. S. C. 231-235, and 18 U. S. C. 80; R. S. 3490-3494 and

5438.

See 317 U. S. 537, 87 L. Ed. 374, 378.

7

power to control the institution and prosecution of all

qui tam actions thereunder after the United States at any

time elected to sue in its own behalf, and its officers

were thereafter prepared to proceed with diligence?

(b) Where the United States elects to file such suit

after an informer has already filed one, must it be granted

precedence in the trial of its action and must any prior

informer’s case filed under the False Claims Statutes be

stayed so long as it appears that officers of the United

States are prepared to thereafter proceed with diligence?

(c) That an informer filing the first action against

defendants under the False Claims Statutes for defraud-

ing the United States either acquired no rights, or al-

ternatively lost them when the United States later elected

to file its own action?

(d) That the United States may project itself into

a prior qui tam action filed by petitioner under the False

Claims Statutes by filing a motion to stay proceedings

therein, after it filed its own later action against the same

defendants and was entitled to appeal from the order deny-

ing a stay in the informer’s case?

(e) That appeals of the United States filed in its

later case and in petitioner’s case should be consolidated,

and an order made to reverse the informer’s case and

to set aside an order made therein from which no appeal

was taken?

(f) That an order granting or denying a motion to

stay proceedings is clearly injunctive in nature and is ap-

pealable under Section 129 of the Judicial Code, 28 U. S. C.

227.

5A. R. 7. Honorable Francis Biddle, Attorney-General, in

letter addre to District Judge Otis, dated July 21st, 1943, said:

“The civil suit, as you are undoubtedly aware, is not

under my control. The statute which gives the right of suit

to an informer, in the name of the United States, does not

provide for governmental control of that litigation.”

2. (a) Where the common offer extended to citizens

by the False Claims Statutes was accepted by petitioner

by filing his qui tam action before any similar action was

instituted against defendants charged with defrauding the

United States, and he paid and incurred liability for costs,

took depositions, and actively prepared his case for trial,

was petitioner unlawfully deprived of vested quasi-con-

tractual statutory rights and of due process of law and

of equal protection of laws under the Fifth Amendment

of the Constitution of the United States, by the decision

of the Eighth Circuit Court of Appeals, which ruled that

the petitioner had no right to proceed with his action

because the United States two days later filed a suit in

its own behalf, which its officers were then prepared to

prosecute with diligence?

(b) Were the obligations of statutory quasi-contrac-

tual rights thereby impaired?

3. May a court of inferior jurisdiction authorize the

Attorney General of the United States to usurp the powers

which he asserted but which were rejected by this Court

and decreed to be subject to legislative supremacy in U. S.

ex rel. Marcus v. Hess.

REASONS FOR GRANTING THE WRIT.

It is in the public interests that full jurisdiction of

the subject matter should be vested in this Court by is-

suing the writ in the ordinary, usual and accepted course

of judicial proceedings. The decision for which review

is prayed imperatively requires the exercise of such juris-

diction, to:

(1) Vindicate and maintain the legislative suprem-

acy to determine policies and to limit the activities of

executive departments, as but lately adjudicated on Jan-

uary 18th, 1943, in U. S. ex rel. Marcus v. Hess.

(2) Vindicate and maintain the dignity and consti-

tutional finality of the decisions of this Court and the

8

constitutional authority of this Court to require observance

thereof by executive departments and courts of inferior

jurisdiction.

(3) Vindicate and maintain the constitutional sep-

aration of the powers of government as sustained and

declared in U. S. ex rel. Marcus v. Hess, and to quash

coram non judice proceedings on appeal purporting to con-

firm usurpation by the Department of Justice of the

power to control qui tam actions, after that power was

denied with finality by adjudication of this Court.

(4) Vindicate and maintain the finality of the au-

thority of this Court to prohibit usurpation by an ex-

ecutive department of powers reserved to legislative au-

thority after definite adjudication denying the existence

of such powers.

(5) Vindicate and maintain the constitutional denial

of authority to impair the obligation of contracts lawfully

entered into by the United States.

(6) Vindicate and maintain the faith and credit of

the United States and to quash a decision renouncing the

contractual obligations of the United States arising from

the timely and exact acceptance of a statutory offer

made binding upon the United States by enactment of

the supreme legislative authority and approved by the

highest executive authority, and but lately construed and

sustained by this Court.

(7) Prevent judicial fiat on appeal interpolating into

the False Claims Statutes a nonexistent provision to grant

governmental control over the institution and prosecution

of qui tam actions. This Court within the year had denied

the existence of such power and suggested that recourse

was to the legislative forum. The decision contravenes

the latest expressions of this Court in U. S. ex rel. Marcus

v. Hess.“

6“Second. Previous to the filing of this action these

respondents were indicted for defrauding the government

ee SEINE beta 8 —ͤ— —

— —

10

On January 18th, 1943, this Court, in explicit and

unmistakable terms, denied the Attorney General the

power of control over the institution or prosecution of

qui tam actions filed by informers under the False Claims

Statutes.

The Justice Department emphatically opposed both

the theory and policy of the Act before this Court. It

asserted that effective law enforcement required the At-

torney General to control the filing and prosecution of

such actions.

This Court carefully reviewed the Act, with its leg-

islative history. It reiterated that the Constitution com-

mitted to the Congress the supreme and exclusive author-

ity to determine and fix the policies best designed to

protect the United States against fraud. In denying the

vehement departmental arguments that it was inconceiv-

able under present conditions that the Attorney General

did not possess complete control of all litigation affecting

the interests of the Government, this Court recognized

that while conditions may change, no change was thereby

effected in the organic division of governmental powers.

It ruled that the statute had not been changed, and said,

“But the trouble with these arguments is that they are

addressed to the wrong forum.”

and on a plea of nolo contendere were fined $54,000. They,

and the government which has filed a brief amicus curiae at

our request, assert that the petitioners received their infor-

mation not by their own investigation, but from the previous

indictment; and both argue that Secs. 3490-3493, 31 U. S. C. A.,

Secs. 231-234, should not under such circumstances be con-

strued as permitting suit by the petitioners. The petitioners

deny that they relied upon the information contained in the

indictment, assert that they spent money in conducting an

investigation of their own, and claim that they presented

more evidence than the government had discovered.

“Even if, as the government suggests, the petitioners

have contributed nothing to the discovery of this crime, they

have contributed much to accomplishing one of the purposes

for which the Act was passed. Their suit results in a net

11

Every departmental argument advanced was fully dis-

cussed and rejected. The identical arguments adopted and

announced as controlling law by the Eighth Circuit on

appeal were here disapproved after detailed consideration.

There was no departmental acquiescence in the Mar-

cus adjudication of legislative supremacy and exclusive

authority within its appointed sphere, nor in recognition

of the constitutional finality of decisions of this Court in

construing legislative acts and decreeing enforcement

thereof by the executive power in conformity therewith.

Confirmation of the powers asserted, but uncondi-

tionally rejected in this Court, was sought, but not in the

forum suggested. The United States filed a motion to

stay proceedings in petitioner’s case until after trial of

related criminal indictments. Overruling of that motion

supplied the vehicle for a purported appeal to the forum

selected. There the departmental plea was mistaken for

“the voice of the people.”

The Eighth Circuit decision on the purported appeal

readily granted the power to the Attorney General and

his department, that was denied by this Court. The prior

obscurity and error concealing the true meaning and legis-

lative intent of the statute was swept away by the de-

cision, after a ready preliminary determination that the

recovery to the government of $150,000, three times as much

as the fines imposed in the criminal proceedings; and this

recovery was obtained at the risk of a considerable loss to the

petitioner since Sec. 3491 explicitly provides that the informer

must bear the risk of having to pay the full cost of the liti-

gation.

“Neither the language of the statute nor its history lends

support to the contention made by respondents and the gov-

ernment. ‘Suits may be brought and carried on by any

person,’ says the Act, and there are no words of exception

or qualification such as we are asked to find. The Senate

sponsor of the bill explicitly pointed out that he was not

offering a plan aimed solely at rewarding the conspirator

who betrays his fellows, but that even a district attorney,

who would presumably gain all knowledge of a fraud from

his official position, might sue as the informer:

12

United States rightfully interjected itself as a party in

petitioner’s qui tam action, and properly appealed from a

procedural order denying a stay until trial of related in-

dictments.

It was found to be clearly manifest that granting or

denying such an order was injunctive in nature and un-

questionably within the terms of 28 U. S. C. 227, to au-

thorize the appeal. The District Court was reversed and

ordered to stay petitioner’s action and to grant precedence

to the United States in the trial of its action, notwith-

standing that it was filed two days after the single right

of action for recovery of the statutory sanctions had al-

ready been appropriated by the prior filing of petitioner’s

case.

The False Claims Act, under the Eighth Circuit’s

enlightened construction, and the Marcus decision under

the lens of differentiation, became ductile.

The inherent, self-evident intent of the False Claims

Act was adjudged to require dispossession of an informer

from the field, after he first opened engagement with

defendants, when and if lethargy was once overcome by

officers of the United States charged with vigilance in

enforcing its rights and their decision was made that

thenceforth they were prepared to prosecute its interests

with diligence. Thereafter, absolute control with the

right of precedence in the trial even of a case subse-

„The bill offers, in short, a reward to the informer

who comes into court and betrays his co-conspirator, if

he be such; but it is not confined to that class. Even

the district attorney, who is required to be vigilant in

the prosecution of such cases, may be also the informer,

and entitle himself to one half the forfeiture under the

qui tam clause, and to one half of the double damages

which may be recovered against the persons committing

the act.“

The government presses upon us strong arguments of

policy against the statutory plan, but the entire force of

these considerations is directed solely at what the govern-

ment thinks Congress should have done rather than at what

—

n —

quently filed, must be accorded to them. The question

ted was sui generis. Obviously, it was not con-

trolled by the Marcus opinion; for there the Attorney

General not only filed no action, but opposed Marcus in

the prosecution of his case.

If given judicial consideration, no allusion is found

to the compelling solemnity of contractual obligations

made binding upon the United States after acceptance,

by statutory offer of the sovereign people, acting through

their lawfully ordained and elected representatives, fol-

lowed by approval of the highest executive authority and

but lately construed and declared valid by the supreme

judicial power. The difficulties encountered in over-

coming the recognized judicial restraints upon impairing

contractual obligations, lawful when entered into under

the existing highest judicial construction of a statute,

even when changed by a later decision, if found burden-

some, were borne in silence.

No solace was extended petitioner for the costs paid

and obligations incurred in filing and diligently preparing

his case for early trial, nor for the travel and expense

required for numerous depositions, nor for his ouster sad-

dled with full liability for costs. Passed without com-

‘ment also, was the reflection cast by enlightened con-

struction upon the integrity, honor and good faith of the

elected representatives of the people. Their true intent

was held to be to arouse United States officers out of

it did. It is said that effective law enforcement requires that

control of litigation be left to the Attorney General;'' that

divided control is against the public interest; that the Attorney

General might believe that war interests would be injured

by filing suits such as this; that permission to outsiders to

sue might bring unseemly races for the opportunity of profit-

ing from the government’s investigations; and finally that

conditions have changed since the Act was passed in 1863.

But the trouble with these arguments is that they are ad-

dressed to the wrong forum. Conditions may have changed,

but the statute has not.

—

14

lethargy into vigilance, at the expense of an informer,

but with that purpose once accomplished, the trap of dis-

possession should drop the informer into a pitfall so as

not to impede the feet of those belatedly inspired to move

by his prior activity.

The constitutional supremacy of the Congress in the

sphere of legislation, so carefully reiterated and sus-

tained here, and the supremacy of this, the only Court

created by the Constitution and in which alone is vested

the authority to speak with finality, are nullified. The

usurped power denied alike by Court and Congress are

usurped and now fully exercised by the Justice Depart-

ment. The Eighth Circuit pronouncement of true stat-

utory meaning has since successfully blended with the

executive voice in other jurisdictions, where motions to

dismiss qui tam actions have been sustained. The de-

cision of which review is sought is currently the ac-

cepted and controlling authority, in fact. Constitutional

finality of decision has been effectively displaced by ex-

ecutive repudiation benignly sustained, along with an ap-

pellate procedure of first impression quite different from

all patterns of precedent.

That there is a true and sincere belief that the call

of duty justifies the usurpation of power is not ques-

“Furthermore, one of the chief purposes of the Act, which

was itself first passed in war time, was to stimulate action

to protect the government against war frauds.'* To that end,

prosecuting attorneys were enjoined to be diligent in en-

forcement of the Act’s provisions, and large rewards were

offered to stimulate actions by private parties should the

prosecuting officers be tardy in bringing the suits.

“The very fact that Congress passed this statute shows

that it concluded that other considerations of policy out-

weighed those now emphasized by the government; for most

of the arguments made here militate against any informer

action at all. Had the government filed a suit prior to that

instituted by these petitioners, a different question would be

presented. Cf. Francis v. United States, 5 Wall. (U. S.) 338,

18 L. Ed. 603. Under the circumstances here, we could not,

without materially detracting from its clear scope, decline

to recognize the petitioner’s right to sue under the Act.”

15

tioned but is attested by a character without fear and

above reproach, which may not be impugned. Sincerity

of action, however, is the only flame to which the founda-

tions of government are subject. Zeal has blinded the

true intent to sustain and never to destroy. Admonition

was ineffective. A direction for exact navigation on the

true course will unhesitatingly be followed with undi-

minished zeal.

(8) Determine that the single cause of action created

by the False Claims Statutes was appropriated when

petitioner first filed his suit to recover the statutory sanc-

tions for frauds against the United States. The statute

as here construed clearly excludes any later suitors from

control. Under the recognized principle that two actions

for the same cause may not be maintained at the same

time, the subsequent cases, including the Government’s

later case, were properly stayed by the District Court.

This rule with respect to qui tam suits or “public actions”

is as old as the common law."

(9) Decide that the Government, under all the au-

thorities found, was not a party to petitioner’s case, and

had no right to file the motion to stay that action.*

See U. S. ex rel. Marcus v. Hess, Headnote 4, and footnotes

thereunder.

See U. S. ex rel. v. Hendrick, 52 F. Supp. 60, 61 (1), Adv.

Sh, 12-6-1943.

U. S. v. B. F. Goodrich Co. et al., (D. C., N. v.) 41 F. Supp.

574, I. c. 575, saying:

“Obviously, under the general rule well known and so

long adhered to, one plaintiff should not be permitted to

bring and maintain at the same time more than one action

for the same relief. The only plaintiff in an action such as

this must be the United States, no matter who brings it on

its behalf. Before the commencement of this action, suit

We find in 3 L. Ed. I. c. 448, in connection with the case of

Livingston v. Dorgenois, supra (not a qui tam action), this sig-

nificant language:

16

(10) Decree that neither the defendants nor the

Government filed any notice of appeal from the order

entered by the District Court in petitioner’s case grant-

ing him right of trial of the single statutory cause of

action. The only purported appeal was from the order

refusing the Government’s motion to stay pending trial

of the related criminal case (N. R. 12). The trial court’s

action on this motion was affirmed.

Rule 73 (b), Rules of Civil Procedure, provides:

“The notice of appeal shall specify the parties

taking the appeal; shall designate the judgment or

part thereof appealed from (italics ours); and shall

name the court to which the appeal is taken.”

Where the notice to appeal designated the particular

order and judgment from which appeal was taken, other

matters not therein specified were not presented for re-

view. Chlupsa v. Posvic, (C. C. A. 7, 1940) 113 F. 2d

375; Carter v. Powell, (C. C. A. 5, 1939) 104 F. 2d 428,

rehearing den., 104 F. 2d 1012, cert. den. (1940), 60 S.

Ct. 173, 308 U. S. 611, 84 L. Ed. 511.

had already been commenced by the United States in the

Mandel case, for the very same relief sought by Scott here.

There can be no division of the moneys collected, because

among other reasons, the statute expressly provides that

such a suit shall be at the sole cost and charge of the person

bringing it; and the proceeds are to be divided one-half to

him and the other half to the United States. Others are

excluded. Even the sovereign has no right to interfere. The

first plaintiff has sole control of the action, except that he

cannot dismiss it without consent of the judge and the Dis-

trict Attorney. Under the circumstances, this action must be

stayed. United States v. Griswold, 26 Fed. Cas., p. 42, No.

15266; Bush v. United States, (C. C.) 13 Fed. 625; United

States v. Dwight Manufacturing Co., (D. C.) 213 Fed. 522;

Beadleston v. Sprague, 6 Johns, (N. Y.) 101; Ferett v. Atwill,

8 Fed. Cas., p. 1161, No. 4747.”

“The government of the United States has no greater

right to stay the proceedings in a suit between third persons,

than any other individual; and no individual can stay the

s~7~s~“~x(_

17

The stay order made in the Government’s case on

defendants’ motion was not an appealable order under

Section 129, Judicial Code, 28 U. S. C., Sec. 227. The

order reads (N. R. 10):

“Proceedings in Cases 1408 (Government’s case)

and 1411 (Pink case) are stayed until the further

order of the court.”

The order was not decisive of the case. It was not

of any injunctive nature within Section 129. If the trial

court later determined that the Government should pro-

ceed with its case instead of petitioner, a mere change

of place on the court’s docket would accomplish it. The

stay order made was a mere procedural stay, from which,

in the circumstances, no appeal is provided.

(11) Settle that when the common statutory offer

extended alike to all citizens by the False Claims Statutes

was accepted by petitioner, by filing his qui tam action

prior to any similar action, and he incurred liability for

and paid costs and actively prepared his case for trial,

the Eighth Circuit’s decision on appeal unlawfully de-

prived him of vested quasi-contractual statutory rights

and of due process of law” and equal protection of laws

U. S. v. Griswold, 24 Fed. 361 (1885), affirmed 30 Fed. 361

(1887), saying:

“By virtue of the statute prescribing the forfeiture and

damages recovered n this case, and authorizing any one to

sue for them who would, the defendant, Griswold, became

bound to pay the same to the prosecutor herein, the one-half

for himself and the other half for the use of the United States.

The law implied a contract to that effect, and the judgment

obtained thereon is so far the private property of the prose-

cutor, and cannot be released or satisfied without his con-

sent, any more than if it had been obtained in a private

proceedings in such cases upon the mere suggestion of in-

terest or collusion without becoming a party to the suit. It

is true that the United States cannot be brought into court as

defendant in all cases; but shall it therefore come when it

18

under the Fifth Amendment to the Constitution of the

United States. The anomalous ruling was that he ac-

quired no rights under the statutes, or was divested thereof

when officers of the United States subsequently evidenced

interest and activity by filing a similar suit for the United

States for the same recovery.

The Act provides that (1) “such suit may be brought

and carried on by any person, as well for himself as for

the United States”; (2) it “shall be at the sole cost

and charge of such person”; (3) it may not be dismissed

by the United States, although it may be dismissed by

the qui tam plaintiff with the consent in writing of the

judge and District Attorney; and (4) the person bringing

suit shall be entitled to one half of the sanctions imposed.

Petitioner’s action was authorized by express statute.

He undertook the sole burden of costs. In the Marcus

case, this Court recognized the informer’s interest in the

outcome of his action in saying, The recovery was ob-

tained at the risk of a considerable loss to the petitioner

since Section 3491 explicitly provides that the informer

must bear the risk of having to pay the full cost of the

litigation.”

action on the bond of the defendant. 3 Bl. Comm. 159. For,

although the king might, by a pardon of the offender, bar or

prevent a popular action before it was commenced, he could

not, by this or any other means known to the law, interfere

with its prosecution after it was commenced, or release or

dispose of the prosecutor’s interest in the judgment therein.

6 Bac. Abr. 134; 4 Bl. Comm. 399; Whart., Crim. Pl., Sec. 528;

1 Bish., Crim. Law, Secs. 909, 911; U. S. v. Lancaster, 4 Wash.

C. C. 64; Shoop v. Com., 3 Pa. St. 126; U. S. v. Harris, 1 Abb.

(U. S.) 110; Ex parte Garland, 4 Wall. 381; 2 Hawk. P. C., e.

37, Secs. 34, 54.”

It is significant that in the Griswold case the Government

was willing to release a $23,576 fraud claim for $100. Cf. U. S.

ex rel. Marcus v. Hess, in which the Government was satisfied

pleases, and interfere in private concerns? It is sufficient

that it can seize what it pleases, and hold what it seizes, with-

out being compellable to account. But it is the only civilized

—

19

The statute offered a definite award as an induce-

ment to “any person” who successfully protects the United

States against and recovered for false claims made. The

person first accepting the statutory offer automatically

assumed the entire risk of loss. Petitioner’s acceptance

and active preparation for trial created and continued a

mutual covenant with obligations resting on both parties.

In Wilson v. United States, 135 F. 2d 1005, where the

Third Circuit had under consideration an informer’s

rights under the Tucker Act, it was said:

“We think that in enacting Section 619 Congress

intended the Secretary of the Treasury to make an

award and pay compensation to an informer who gave

valuable original information to the United States.

There is therefore an implied contract within the

meaning of the Tucker Act between the United States

and the informer who brings himself within the pur-

view of Section 619. As was stated by Mr. Justice

Stone in Dismuke v. United States, 297 U. S. 167,

States is not bound to provide a remedy in the courts

because it has created claims against itself, but wee

with a fine amounting to about one-third of the recovery in the

informer's suit.

That the rule contended for by petitioner is as old as the

common law is demonstrated by the following authorities:

Year Book 1, Henry VII, fol. 3a (Mich. T. Plea 2 (1485) ).

“Once the person who desires to sue (in a popular, or

neither the King nor any one else can release it as far as

his interest is concerned.

“Finally, in all those cases in which a stranger has not yet

commenced an action, the King can grant a pardon and re-

government that refuses to submit its right to judicial de-

cision. * * *

20

in the absence of compelling language, resort to the

courts to assert a right which the statute creates

will be deemed to be curtailed only so far as au-

thority to decide is given to the administrative of-

ficer.“ In Tyson v. United States, 32 F. Supp. 135,

page 137, 91 Ct. Cl. 139, the Court of Claims reached

a conclusion similar to that which we have expressed

in respect to the construction of Section 619, stating,

‘In our view it was the intent of Congress that the

Secretary should have exclusive jurisdiction only to

determine disputed questions of fact, and that, as in

other administrative matters, his decision upon ques-

tions of law should be reviewable by the courts.’”

In Dismuke v. United States, 297 U. S. 167, 80 L. Ed.

560, I. c. 566, we find:

“* * * But the power of the administrative of-

ficer will not, in the absence of a plain command,

be deemed to extend to the denial of a right which

the statute creates, and to which the claimant, upon

facts found or admitted by the administrative officer,

is entitled. * * *”

While it is established that a reward is revocable at

any time before earned or accepted, and anything is done

in relying upon the offer (Shuey v. U. S., 92 U. S. 73, 23

lease (the claim) and that will constitute a bar against

everybody” (Matters in brackets interpolated by us).

Stretton v. Taylor, 1 Leo. 119, 74 Eng. Rep. 111 (1588/89).

Qui tam action brought by private informer, the Queen’s attorney

pleaded non vult prosequi. HELD, the nolle prosequi does not

prejudice the private informer. Same case: Cro. Eliz. 138. Cf.

Cro. Eliz. 583.

11 Coke 66b.

“Note reader, Trin. 31 El. in this Court inter Stretton qui

tam, etc., and Taylor it was adjudged that after a popular

action brought, although the King’s Attorney will enter

“It is also objected, that if the cause be sent back, the

United States cannot have a hearing. But the United States

may intervene, which is a process analogous to a bill of inter-

eo

21

L. Ed. 697; U. S. v. Connor, 138 U. S. 61, 34 L. Ed. 860),

this Court has consistently ruled that a contract arises

when “anything has been done in reliance upon it,” or

if “something has been done to complete a contract or

settle and establish a right under the offer.”

In Lynch v. U. S., 292 U. S. 571, 577, 78 L. Ed. 1434,

it was ruled that “War Risk policies, being contracts, are

property and create vested rights.” Speaking for a unan-

imous court, Mr. Justice Brandeis said, at page 579:

“The Fifth Amendment commands that property

be not taken without making just compensation.

Valid contracts are property, whether the obligor be

a private individual, a municipality, a state, or the

United States. Rights against the United States aris-

ing out of contract with it are protected by the Fifth

Amendment.”

In the Lynch case, the United States contended that

it may be sued only by consent. That issue is not pre-

sented here. The Government interjected itself into pe-

titioner’s case, and on appeal to the forum selected, a new

concept of the true statutory intent was declared, which

repudiated the contractual obligations recognized here.

ulterius non vult prosequi, or the defendant pleads a special

plea although the use is, that the Attorney replies

only, yet if he will not reply or prosecute for the King, the

informer may prosecute for his part, for by the suit of the

informer commenced, he has made the popular action his

private action which the King nor any other can release as

to his interest.”

3 Coke Inst. 238.

“After an action—popular be brought tam pro domino

Rege quam pro se ipso, according to any statute, the King

cannot discharge but his own part and cannot discharge the

informer’s part, because by the bringing of the action he

hath an interest therein: but before action brought the King

pleader. It is not true that they cannot intervene but as aux-

iliary to the plaintiff or defendant. This is shown by Pothier,

22

Coombes v. Getz, 285 U. S. 434, 76 L. Ed. 866, held

directors to a double liability imposed by a clause in the

Constitution of California. It was repealed pending an

appeal. This Court ruled that when a contractual obliga-

tion arose by virtue of the Constitutional provision and

the right to enforce it became vested, it was within

the constitutional protection of the contract clause and the

Fourteenth Amendment.

On acceptance of the contract voluntarily offered by

supreme authority for and in the name of the United

States, it became pledged. The Fifth Amendment stands

as a bulwark which neither the Eighth Circuit by evolving

a changed and strange construction, nor even the Con-

gress, by subsequent legislation to change the former

legislative policy of the United States, may lawfully sur-

mount, without violence to the law of the land.

The United States is as firmly bound upon accept-

ance of its statutory offer to contract as any individual

under similar circumstances.

The informer is the primary party to whom the False

Claims Statutes, by their language, grant a vested in-

terest, and upon whom it imposes the obligation to pay

all costs. It differs therein from other statutes construed

by the courts.

may discharge the whole (unless it be provided to the con-

trary by the Act) because the informer cannot bring an

action or information originally for his part only, but must

pursue the statute, and if the action be given to the party

grieved the King cannot discharge the same.”

4 Blackstone 399.

“Neither, lastly can the King pardon an offence against

a popular or penal statute, after information brought; for

thereby the informer hath acquired a private property in

his part of the penalty.”

cited by the Attorney-General. He speaks throughout of the

right of the third person who intervenes. But if the United

States cannot intervene joining one or the other party, why

OO

23

An informer under the type of an Act of 1861 had

no right to object to the dismissal of a suit by the At-

torney General, because he had no part whatever in the

suit. Confiscation Cases, 7 Wall. 454, 19 L. Ed. 196. So,

in U. S. v. Thomasson, 4 Biss. 336, Fed. Cases No. 16479

(1889), an informer under the Internal Revenue Act of

1864 was held not to have a vested interest, and he could

not object to which remitted the whole penalty. There

again, the informer was not a party to the action. The

action and right of recovery were vested solely in the

United States.

In U. S. v. Conner, supra, the Court could find no

vested interest granted to an informer by the Internal

Revenue Law as amended in 1866, when the informer

provision was repealed in 1872. Again, the informer was

not a party to the suit and had no claim except such

allowance as was fixed by the Secretary of the Treasury

after collection of the judgment.

None of these Acts made the informer a party to the

suit, nor imposed upon him the obligation for the costs

therein. Compare: U. S. v. Griswold, 24 Fed. 361 (1885),

affirmed 30 Fed. 361 (1887); U. S. v. Goodrich Co. et al.,

From Bacon’s Abridgment of the Law—Pardon B.

“The King can by no charter whatsoever bar any right

of Entry of Action or any legal Interest or Benefit theretofore

vested in the subject; and therefore it seems clear that he

cannot bar any action on a statute by the party grieved, nor

even a popular action commenced before his pardon, nor a

recognizance for the Peace before it is forfeited.”

From Comyn’s, A Digest of the Laws of England: Sub. nom.

Pardon F What (offences pardon does) not (discharge).

“Nor, an action commenced qui tam, etc., upon a penal

statute except for the King’s moiety or part.”

not join the defendant who claims under the United States?

If his defense is imperfect, why not help him? If collusive,

why not make a better?

24

41 F. Supp. 574, I. c. 575; U. S. ex rel. Marcus v. Hess,

(1943) 317 U. S. 537, 87 L. Ed. 374, 378, construing the

False Claims Statutes here involved.

That the vested interest of an informer under the

False Claims Act is not within the rule that no vested

interest may accrue in governmental gratuities or in 2

grant of governmental power (such as this Court spoke

of in the Lynch case, supra) is indicated in that opinion,

where Mr. Justice Brandeis said, “Pensions, compensa-

tions, allowances and privileges are gratuities. They in-

volve no agreement of parties; and the grant of them

creates no vested right.”

Likewise, in U. S. v. Powelson, 87 L. Ed. 976, it was

said:

“The grant of the power of eminent domain is

a mere revocable privilege for which a state cannot

be required to make compensation.”

Here protection was denied to a vested contract right

duly created by a statutory offer exactly and timely ac-

cepted, whereby the United States and the petitioner be-

came mutually obligated when petitioner, for himself as

well as for the United States, filed his action against

“Even under the Roman civil law, the Emperor himself

cannot by rescript affect the property of a person who has

not been heard. Code, Tit. 4, C. J. Civ., Vol. 2, p. 258.“

In Burrell v. United States, (C. C. A. 9) 147 Fed. 44, 46, it

was held:

“ ‘Parties’ include all persons who are directly interested

in the subject matter in issue, who have a right to make a

defense, control the proceedings or appeal from the judgment.

Strangers to a suit are persons who do not possess these

rights.”

See also, for one of the best recent dissertations on the question

of “parties” correlating the definitions thereof and citing the

cases in connection therewith, Judge Hutcheson’s dissenting opinion

in case of Tex-O-Can Flour Mills v. United States, 49 F. Supp. 516,

I. e. 522, 523.

me

25

defendants. He incurred costs and liability for subse-

quent expenditures of money required to prepare the case

for trial. He was obligated to protect the interests of the

United States. He could effect no compromise and could

not dismiss without app: val and consent of the Court

and the Attorney Geners:. The mutual obligations rest-

ing on him and upon the United States were reviewed

and delineated with authoritative finality in the Marcus

case, and make it indisputable that, as in the Lynch case,

the vested rights of petitioner are “rights against the

United States arising out of contract,” for the full per-

formance of the obligations of which the faith and credit

of the United States stands as a solemn pledge. The

honor of the United States has never been stained by

denial of that pledge by either usurped or lawful au-

thority.

Conclusion.

The questions here involved are not merely of in-

terest to the litigants, but of great general importance

to all citizens of the United States. Many other qui tam

actions, such as petitioner’s, wherein the Government

either filed no suit, or a belated suit, are pending and

will be determined by the ruling herein. It is respect-

fully submitted, therefore, that there is presented a proper

occasion for the exercise of the supervisory powers of

this Court.

Lou NATHANSON,

Petitioner,

By J. Francis O’SULLIVAN,

Maurice J. O’SULLIVAN,

Counsel for Petitioner.

APPENDIX.

Sections 3490-3493 of the Revised Statutes 12 Stat.

696, 31 U. S. C., Sections 231-234) read as follows:

“Sec. 3490. Any person not in the military or naval

forces of the United States, or in the militia called into

or actually employed in the service of the United States,

who shall do or commit any of the acts prohibited by

any of the provisions of section fifty-four hundred and

thirty-eight, Title ‘Crimes,’ shall forfeit and pay to the

United States the sum of two thousand dollars, and, in

addition, double the amount of damages which the United

States may have sustained by reason of the doing or

committing such act, together with the costs of suit; and

such forfeiture and damages shall be sued for in the

same suit.

“Sec, 3491. The several district courts of the United

States, the Supreme Court of the District of Columbia,

the several district courts of the Territories of the United

States, within whose jurisdictional limits the person do-

ing or committing such act shall be found, shall, where-

soever such act may have been done or committed, have

full power and jurisdiction to hear, try, and determine

such suit, Such suit may be brought and carried on by

any person, as well for himself as for the United States;

the same shall be at the sole cost and charge of such

person, and shall be in the name of the United States,

but shall not be withdrawn or discontinued without the

consent, in writing, of the judge of the court and the

district attorney, first filed in the case, setting forth their

reasons for such consent.

“Sec, 3492. It shall be the duty of the several dis-

trict attorneys of the United States for the respective

districts, for the District of Columbia, and for the sev-

eral Territories, to be diligent in inquiring into any vio-

lation of the provisions of section thirty-four hundred

and ninety by persons liable to such suit, and found within

their respective districts or Territories, and to cause them

to be proceeded against in due form of law for the re-

covery of such forfeiture and damages. And such per-

son may be arrested and held to bail in such sum as

the district judge may order, not exceeding the sum of

two thousand dollars, and twice the amount of the dam-

ages sworn to in the affidavit of the person bringing

the suit.

“Sec. 3493. The person bringing said suit and pros-

ecuting it to final judgment shall be entitled to receive

one-half the amount of such forfeiture, as well as one-

half the amount of the damages he shall recover and

collect; and the other half thereof shall belong to and

be paid over to the United States; and such person shall

be entitled to receive to his own use all costs the court

may award against the defendant, to be allowed and taxed

according to any provision of law or rule of court in

force, or that shall be in force in suits between private

parties in said court: Provided, That such person shall

be liable for all costs incurred by himself in the case,

and shall have no claim therefor on the United States.”

Section 5438 of the Revised Statutes, 12 Stat. 696,

reads as follows:

“Sec. 5438. Every person who makes or causes to

be made, or presents or causes to be presented, for pay-

ment or approval, to or by any person or officer in the

civil, military, or naval service of the United States, any

claim upon or against the Government of the United

States, or any department or officer thereof, knowing

such claim to be false, fictitious, or fraudulent, or who,

for the purpose of obtaining or aiding to obtain the pay-

ment or approval of such claim, makes, uses, or causes

to be made or used, any false bill, receipt, voucher, roll,

account, claim, certificate, affidavit, or deposition, know-

ing the same to contain any fraudulent or fictitious

statement or entry, or who enters into any agreement,

combination, or conspiracy to defraud the Government of

the United States, or any department or officer thereof,

by obtaining or aiding to obtain the payment or allowance

of any false or fraudulent claim, or who, having charge,

ion, custody, or control of any money or other

public property used or to be used in the military or

naval service, who, with intent to defraud the United

States or willfully to conceal such money or other prop-

erty, delivers or causes to be delivered, to any other per-

son having authority to receive the same, any amount

of such money or other property less than that for which

he received a certificate or took a receipt, and every per-

son authorized to make or deliver any certificate, voucher,

receipt, or other paper certifying the receipt of arms,

ammunition, provisions, clothing, or other property so

used or to be used, who makes or delivers the same to

any other person without a full knowledge of the truth

of the facts stated therein, and with intent to defraud

the United States, and every person who knowingly pur-

chases or receives in pledge for any obligation or indebted-

ness from any soldier, officer, sailor, or other person called

into or employed in the military or naval service any

arms, equipment, ammunition, clothes, military stores, or

other public property, such soldier, sailor, officer, or other

person not having the lawful right to pledge or sell the

same, every person so offending in any of the matters

set forth in this section shall be imprisoned at hard labor

for not less than one nor more than five years, or fined

not less than one thousand nor more than five thousand

dollars.”