United States v. Kelly

• Citation: 97 F. 460
• Decision Date: 03 October 1899
• Docket Number: 425.
• Parties: UNITED STATES v. KELLY.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

97 F. 460

UNITED STATES v. KELLY.

No. 425.

United States Court of Appeals, Ninth Circuit.

October 3, 1899

Marshall B. Woodworth, for the United States.

J. N Teal, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The judgment of the circuit court in this case was reversed on writ of error from this court, and the cause was remanded for a new trial. 89 F. 946. After the mandate had issued, it was discovered that before this court had rendered its decision congress had passed the act of June 27, 1898, abridging the jurisdiction of the circuit and district courts in certain classes of cases brought against the United States. A motion is now made on behalf of the defendant in error for an order recalling the mandate, upon the ground that this court was by the said act, deprived of its jurisdiction over the case. The act referred to is entitled 'An act to amend sections one and two of the act of March third, eighteen hundred and eighty-seven, Twenty-Fourth Statutes at Large, chapter three hundred and fifty-nine. Section 2 of the act reads as follows:

'That section two of the act aforesaid, approved March third eighteen hundred and eighty-seven, be, and the same is hereby, amended by adding thereto at the end thereof the following: 'The jurisdiction hereby conferred upon the said circuit and district courts shall not extend to cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof."

The question arises whether the act deprives the courts of the United States of jurisdiction of causes which were pending at the time of its enactment. The plaintiff in error invokes the well-settled rule that a prospective operation of a statute is presumed to be intended unless the legislative intent to the contrary is declared, or necessarily implied, either from the words of the statute or from the circumstances which attended its enactment. In the circuit court of appeals for the Fifth circuit, in U.S. v. McCrory, 33 C.C.A. 515, 91 F 295, it was held that the effect of the statute was to deprive the courts of the United States of jurisdiction to entertain pending cases. The same view of the statute was taken by Kirkpatrick, district judge, in Fairchild v. U.S. (C.C.) 91 F. 297; but in Strong v. U.S. (C.C.) 93 F. 257, it was held by Townsend, district judge, that the act was not intended to affect pending cases. The supreme court in a series of decisions has recognized the doctrine that, when jurisdiction of a cause depends upon a statute, the repeal of the statute without a reservation as to pending cases deprives the court of all the jurisdiction which the act conferred. Insurance Co. v. Ritchie, 5 Wall. 541; Ex parte McCardle, 7 Wall. 506; Ex parte Yerger, 8 Wall. 85; Railroad Co. v. Grant, 98 U.S. 398; Sherman v. Grinnell, 123 U.S. 679, 8 Sup.Ct. 260; In re Hall, 167 U.S. 38, 17 Sup.Ct. 723. In Railroad Co. v. Grant it was held that the jurisdiction conferred upon the supreme court by section 847 of the Revised Statutes, which enacted that no cause should be removed from the supreme court of the District of Columbia to the supreme court of the United States by appeal or writ of error, unless the matter in dispute should be of the value of $1,000 or upwards, was taken away by the act of February 25, 1879, which enacted that a judgment or decree of the supreme court of the District might be re-examined in the supreme court of the United States 'where the matter in dispute, exclusive of costs, exceeds the value of $2,500,' and repealed all prior laws inconsistent with the act. The court dismissed the writ of error, which had been sued out on December 6, 1875, to reverse a final judgment of the supreme court of the District where the matter in dispute was $2,250. In Sherman v. Grinnell the question presented to the court was whether or not the jurisdiction of the supreme court to entertain an appeal from an order of a circuit court remanding to the state court a case which had been removed therefrom was repealed by the act of March 3, 1887, which declared that no appeal or writ of error from the decision of the circuit court so remanding the cause under the act of March 3, 1875, made and entered before the act of March 3, 1887, went into effect, was not appealable to the supreme court. The court said, referring to ...