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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1944
- **Citation:** 321 U.S. 744

## Text

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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0082%3A2. Public record. Not legal advice.