1. It is the duty of a court below to obey and give effect to
the mandate of this Court, as far as practicable. Where the mandate
is for restitution of moneys recovered by persons under a decree of
the court below, all persons within the reach of the territorial
jurisdiction of that court should be required by the proper order
to refund what they have received. If they fail to do so, they
should be dealt with promptly by attachment for contempt. This in
no wise interferes with common law remedies, except that the
parties entitled to restitution cannot be paid twice.
2. If a party within the jurisdiction is in possession of any
part of the fund ordered to be paid back, which was received by
another who is out of the jurisdiction, the rights of the
petitioners follow the money into his hands, and he is liable for
it. Such party, within the jurisdiction, should, on an allegation
of his possession, be required to disclose the facts touching that
subject, and if he is in such possession, he should be required to
restore the money so received.
3. Where a marshal who is bound under a mandate from this Court
to make restitution returns that he has deposited the money in bank
pursuant to directions from the United States, the circumstances of
the deposit should be inquired into. If the money was deposited
pursuant to instructions from the proper authority, he is
exonerated, and in that event the proper certificate should be
given by the court to the petitioners, and they be left to seek
redress in the appropriate manner. The court has no authority to
order the United States to refund.
This was a petition presented by Mr. P. Phillips in behalf of
Morris and Johnson for a writ of mandamus against Richard Busteed,
judge of the District Court of the United States for the Middle
District of Alabama.
MR. JUSTICE SWAYNE stated the facts and delivered the opinion of
the Court.
The United States filed an information in the District Court for
the Middle District of Alabama against certain bales of cotton
which it was alleged were liable to seizure and confiscation, and
had come into the possession of the petitioners. The court entered
a personal decree against them for the value of the cotton. They
brought the case here by appeal. This Court reversed the judgment
and remanded the cause, with directions to the district court "to
cause restitution to be made to the appellants of whatever
Page 76 U. S. 606
they have been compelled to pay under that decree." A mandate to
this effect was sent to the district court. [
Footnote 1] Nothing effectual has been done under
it. The petition, which is the foundation of this proceeding was
filed in this Court. The district judge waived the issuing of a
rule to show cause, and submitted a return by which the following
facts appear.
After the rendition of the decree, the judge made an order
directing the money, when collected, to be distributed as therein
prescribed. Five percent was to be paid to F. Q. Smith, the
attorney of the United States; one percent to John Hardy, the
marshal; one percent to E. C. F. Blake, the clerk of the court; and
one-half of the entire amount, less costs and charges, to E. R.
McCrosky, the informer. The other half was to be held in the
registry of the court, subject to the order of the Secretary of the
Treasury. A
fi. fa. was issued on the decree and the full
amount collected from the petitioners. The mandate of this Court
was presented to the district court and proceedings instituted to
enforce the order of restitution. Written answers were filed by the
parties who were brought before the court.
McCrosky, the informer, was beyond the limits of the State of
Alabama. He did not appear or answer. The district attorney
admitted that he had received the amount adjudged to him, but
insisted that he had a right to hold it. In his oral examination
before the court, it was proposed to show by his testimony that he
had received a large part of the money paid to the informer. This
was objected to by his counsel, and the objection was sustained by
the court.
The clerk answered that he had received nothing under the
order.
The marshal answered that after paying Smith and McCrosky, he
had deposited the residue, less the costs of the case, in the First
national Bank of Selma pursuant to instructions from the Interior
Department. That bank has since failed, and is now in the hands of
a receiver. The receiver's answer is in the case, but requires no
particular notice.
Page 76 U. S. 607
Under these circumstances, the district judge was at a loss how
to execute the mandate heretofore sent to him, and submits himself
to this Court for further instructions.
The duty of the district court is simple and obvious, and its
power ample. The mandate of this Court must be obeyed as far as
practicable. All the distributees within reach of the territorial
jurisdiction of the court, except the United States, must be
required by the proper order to refund what they have received. If
they fail to do so, they should be dealt with promptly, by
attachment, for contempt. This will in no wise interfere with any
other remedy to which the petitioners may be entitled, except that
they cannot be paid twice.
If Smith, the district attorney, received from McCrosky any part
of the fund ordered to be paid to the latter, the rights of the
petitioners followed the money into his hands, and he is liable for
it. [
Footnote 2] He should have
been required to disclose the facts touching that subject, and if
they were as the petitioner sought to show, he should have been
required to restore the money so received, as well as that which
was paid to him under the order of distribution.
McCrosky being beyond the reach of the court, no order can be
made in relation to him. He will be amenable to a suit at law
wherever he may be found.
The circumstances of the marshal's deposit should be inquired
into. If the money in question was deposited in the Bank of Selma
pursuant to instructions from the proper authority, he is
exonerated. In that event, the proper certificate should be given
by the court to the petitioners, and they must be left to seek
redress in the appropriate manner. The Court has no authority to
order the United States to refund.
A writ of mandamus will be sent to the district court
directing it to proceed to execute the mandate of this Court
inconformity to this opinion.
[
Footnote 1]
74 U. S. 7
Wall. 579.
[
Footnote 2]
Taylor v. Plumer, 3 Maule & Selwyn 562;
Oliver v.
Piatt, 3 How. 401.
