decided: January 4, 1909.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
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MR. JUSTICE HOLMES delivered the opinion of the court.
This is a suit for $122.26, alleged to be due to the plaintiff in error as an enlisted man in the regular army from November 16, 1906, to July 18, 1907, when his term of service expired. The plaintiff in error was one of the members of Companies B, C and D, of the First Battalion of the Twenty-fifth United States Infantry, Who were discharged without honor by order of the President on the former date, without trial, after certain disturbances in Brownsville, Texas, in which the order averred members of those companies to have participated. The petition alleges that the plaintiff in error had no part in the disturbance and no knowledge as to who was concerned in it, and denies the power of the President to make such a discharge. The answer, after certain preliminaries, suggests for a second defense that the District Court has no jurisdiction, by reason of the act of March 3, 1887, c. 359, § 2, 24 Stat. 505, as amended by the act of June 27, 1898, c. 503, § 2, 30 Stat. 494, which provides that the jurisdiction conferred "shall not extend to cases brought to recover fees, salary, or compensation for official services of officers of the United States," etc. For a third defense the answer alleges the investigations that were made, the reported impossibility of identifying the culprits unless the soldiers would take it in hand or turn State's evidence, the President's belief that the crimes under consideration were committed by a considerable group of the members of the regiment and that the greater part of the regiment must know who were the guilty men, and the issuing of the order in consequence, not as a punishment but for the good of the service, and affirms that it was in accordance with precedent. The third defense was demurred to, the demurrer was sustained, the petition was dismissed on the merits and this writ of error was brought.
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As the case comes here on the merits and not on a certificate under the act of March 3, 1891, c. 517, § 5, 26 Stat. 826, the first question that we have to consider is the jurisdiction of this court, and on this point, without going further, we must yield to the argument submitted, although not urged, on behalf of the United States. The jurisdiction of the District Court is derived from the act of March 3, 1887, c. 359, § 3, 24 Stat. 505, by which it is made concurrent with that of the Court of Claims when the amount of the claim does not exceed one thousand dollars, and that of the Circuit Court is made concurrent for amounts between one thousand and ten thousand dollars. By § 4, the right of appeal "shall be governed by the law now in force," and by § 9, the plaintiff, or the United States, in any suit brought under the provisions of the act "shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made." This meant the same right of appeal as was given from the Court of Claims, United States v. Davis, 131 U.S. 36; so that it hardly admits of doubt that when that statute went into effect an appeal or writ of error under it by a claimant demanding less than three thousand dollars would have been dismissed. Rev. Stat., § 707. See Strong v. United States, 40 Fed. Rep. 183.
The real question is whether this limitation is done away with or qualified by the act of March, 3, 1891, c. 517, §§ 5, 6, and 14, 26 Stat. 826. By § 14 "all acts and parts of acts relating to appeals or writs of error inconsistent with the provisions for review by appeals or writs of error in the preceding sections five and six of this act are hereby repealed." By § 5, writs of error may be taken from the District Courts direct to this court when the jurisdiction of the court is in issue, the question of jurisdiction alone being certified; in which case no other question is open. United States v. Larkin, 208 U.S. 333, 340.That clause does not apply here. The only other clauses of § 5 that are or could be relied upon are "In any case that involves the construction or application of the Constitution of the United States." "In any case in which the constitutionality
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of any law of the United States . . . is drawn in question." The latter may be dismissed as having no bearing, although it was mentioned, so that the possible application of § 5, and the consequent inference that the former limitations on the right to come to this court are repealed, so far as this case is concerned, depend on the suggestion in the petition that by his discharge the plaintiff was deprived of his property without due process of law.
We shall not discuss that suggestion, because we are of opinion that in any event the repealing words that we have quoted do not apply to the special jurisdiction of the District Court sitting as a Court of Claims. Suits against the United States can be maintained, of course, only by permission of the United States, and in the manner and subject to the restrictions that it may see fit to impose. Kawananakoa v. Polyblank, 205 U.S. 349, 353. It has given a restricted permission, and has created a pattern jurisdiction in the Court of Claims, with a limited appeal. The right to take up cases from that court by writ of error still is limited as heretofore. It would not be expected that a different rule would be laid down for other courts that for convenience are allowed to take its place, when originally the rule was the same. It does not seem to us that Congress has done so unlikely a thing. The act of March 3, 1891, c. 517, is dealing with general, not special jurisdiction. It has been decided in some cases of special jurisdiction that there is an implied exception to almost equally broad words in the same act. United States v. Dalcour, 203 U.S. 408. Congress, when its mind was directed to the specific question, determined for all courts what the amount must be before the grace of the sovereign power would grant more than one hearing. It has not changed that amount for the usual case. A change looking to the ordinary business of the courts should not be held to embrace that, merely on the strength of words general enough to include it, when the policy of the repealing law, and the policy of the law alleged to be repealed, have such different directions, and when it appears that the general policy
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of the latter still is maintained. The limitation with reference to amount unquestionably remains in force for the District Court in cases outside of the act of 1891, § 5, as well as for the Court of Claims. In our opinion, the act of 1891, § 5, was not intended to create exceptions, when no such exceptions exist for the Court of Claims.
We observe that the plaintiff in error gives a hint at dissatisfaction with the Government for raising this point. But jurisdiction is not a matter of sympathy or favor. The courts are bound to take notice of the limits of their authority, and it is no part of the defendant's duty to help in obtaining an unauthorized judgment by surprise.
Writ of error dismissed.
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