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Opinion of the Court.

hundred dollars or by imprisonment for not more than one year, or by both such fine and imprisonment for each offence. Any person violating any of the provisions of this section may be proceeded against by information or indictment and tried and punished, either in the district at which the unlawful publication was mailed or to which it is carried by mail for delivery according to the direction thereon, or at which it is caused to be delivered by mail to the person to whom it is addressed.”

There are 9 assignments of error in this case, 6 of which allege that the facts proved before the commissioner do not constitute a crime within 8 3894, as amended; 2 of them are based on the claim that that section is unconstitutional; and the remaining one contends that that section is in violation of a treaty between the United States and Austria, and is therefore void.

It is contended on the part of the United States that, as the appeal in this case was taken on November 17, 1891, after the act entitled “ An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," c. 517, passed March 3, 1891, (26 Stat. 826,) went into effect, this court has no jurisdiction of this appeal, and that it ought to have been taken to the Circuit Court of Appeals for the Second Circuit. But, as the constitutionality of $ 3894, as amended, is drawn in question, an appeal in this case lies directly to this court from the Circuit Court, under $5 of the act of March 3, 1891, which gives such appeal“ in any case in which the constitutionality of any law of the United States ... is drawn in question.” This is in accordance with our decision in Nishimura Ekiu v. United States, 112 U.S. 651, 658, 659, where it was said: “As this case involves the constitutionality of a law of the United States, it is within the appellate jurisdiction of this court, notwithstanding the appeal was taken since the act establishing Circuit Courts of Appeals took effect. Act of March 3, 1891, c. 517, $ 5; 26 Stat. 827, 828, 1115."

We are further of opinion that where an appeal or writ of error is taken direct to this court under $5 of the act of March 3, 1891, in a case in which the constitutionality of a law of the

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Opinion of the Court.

United States is drawn in question, this court acquires jurisdiction of the entire case, and of all questions involved in it, and not merely of the question of the constitutionality of the law of the United States. This is shown by the fact that, under sec. 5, where an appeal or writ of error is taken direct to this court, in a case in which the jurisdiction of the District Court or of the Circuit Court is in issue, it is specifically directed that "the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision,” but there is no kindred limitation prescribed in regard to any of the other cases in which jurisdiction in this court of appeals or writs of error is given by $ 5.

It is contended for Horner that the circular set forth in the complaint, relating to the redemption of the Austrian government bonds, is not included in the prohibition of $ 3894 of the Revised Statutes, as amended, and that he committed no offence by depositing such circular in the mail. But we are of opinion that that question ought not to be reviewed by us on this appeal. The point raised is that the Austrian bond scheme was not a lottery. That is a question properly triable by the court in which an indictment may be found against Horner. He is now held to await the action of a grand jury. His case is in the regular course of criminal adjudication. It is not proper for this court, on this appeal, nor was it proper for the Circuit Court, on the writ of habeas corpus, to determine the question as to whether the scheme was a lottery. In re Cortes, 136 U. S. 330; Stevens v. Fuller, 136 U. S. 468. The commissioner had jurisdiction of the subject matter involved and of the person of Horner, and the grand jury would have like jurisdiction. The offence, if any, was committed within the Southern District of New York. Whether the scheme was a lottery is a question to be determined in the administration of the jurisdiction. It is not for this court to determine that question in advance. The principle is the same as that involved in In re Fassett, 142 U. S. 479, 483, 484. The case presents for the determination of the court in which the indictment may be found the question as to whether the scheme was a lottery, and it is not for any court to determine it in

VOL. CXLIII-37

Syllabus.

advance, on habeas corpus. If an inferior court or magistrate

. of the United States has jurisdiction, a superior court of the United States will not interfere by habeas corpus. Ex parte Mason, 105 U. S. 696; Ex parte Carll, 106 U. S. 521; Ec parte Wilson, 114 U. S. 417; Wales v. Whitney, 114 U. S. 564; Ex parte Harding, 120 U. S. 782; Benson v. McMahon, 127 U. S. 457; In re Coy, 127 U. S. 731, 758; In re Cortes, 136 U. S. 330; Stevens v. Fuller, 136 U. S. 468, 477, 478 and cases there cited.

The question of the constitutionality of $ 3894, as amended, is disposed of by the decision of this court in Ex parte Rapier, ante, 110, which holds that it is constitutional.

The proposition that that section is void if it contravenes a treaty between the United States and Austria is not tenable. The statute is a law equally with the treaty, and, if subsequent and conflicting with the treaty, supersedes the latter. HeadMoney Cases, 112 U. S. 580; Whitney v. Robertson, 124 U. S. 190; Chinese Ecclusion Case, 130 U. S. 581.

The order of the Circuit Court, dismissing the writ of habeas corpus and remanding the accused, is

Affirmed.

DUNWOODY v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 156. Argued January 14, 15, 1892. – Decided January 26, 1892.

The National Board of Health had no authority to incur any liability upon

the part of the government for salaries or other expenses in excess of the amounts appropriated by Congress for such purposes; and the plaintiff' in error did not perform services as a member of that board, or as its chief clerk, or its secretary, or as a disbursing agent of the Treasury Department under any implied contract that he should be compensated otherwise than out of the moneys specifically appropriated to meet the expenses incurred by the board in the performance of the duties imposed

upon it. United States v. Langston, 118 U. S. 389, distinguished from this case.

Statement of the Case.

The court stated the case as follows:

March 3, 1879. An act was passed by Congress to prevent the introduction of contagious diseases into the United States, and establishing the National Board of Health, to consist of seven members, to be appointed by the President, by and with the advice and consent of the Senate, “whose compensation, during the time when actually engaged in the performance of their duties under this act, shall be ten dollars per diem each and reasonable expenses;" four members of the board to be detailed from the Army, Navy, Marine Hospital Service, and the Department of Justice, respectively, and to receive no compensation. The sum of $50,000 was appropriated “to pay the salaries and expenses” of the board, and “to carry out the purposes" of the act. 20 Stat. 484, c. 202.

April 5, 1879. The appellant Dunwoody was appointed by the board its chief clerk, with compensation at the rate of $100 per month, dating from April 3, 1879.

June 2, 1879. Congress passed an act to prevent the introduction of contagious or infectious diseases into the United States, requiring the National Board of Health to coöperate with, and, so far as it lawfully might, aid state and municipal boards of health to that end. The act appropriated $500,000, or so much thereof as might be necessary, to meet the expenses incurred in carrying out its provisions, and to be disbursed by the Secretary of the Treasury on estimates made by the National Board of Health, and approved by him. This act was to continue in force four years. 21 Stat. 5, 8, c. 11.

June 5, 1879. Dunwoody was nominated by the board to the Secretary of the Treasury as its disbursing clerk.

June 6, 1879. The Secretary sent to Dunwoody this communication : “Upon the recommendation of the National Board of Health, you are hereby appointed a disbursing agent of this department for the purpose of disbursing the funds appropriated by Congress for the National Board of Health -- this appointment to be without compensation. You will be required to furnish a bond, with two or more sureties, in the penal sum of $20,000.” The bond so required was given.

Statement of the Case.

June 12, 1879. The board fixed the salary of the claimant as chief clerk at $2000 per annum, beginning June 1.

July 1, 1879. An act was passed authorizing the board to procure suitable offices for the transaction of its business, at a rent not exceeding $1800 a year, and to pay past rent, and providing: "$ 5. That the chief clerk of the National Board of Health shall act as disbursing agent for the board, and shall give bond, conformably to § 176 of the Revised Statutes, for the faithful performance of that duty, and for such service he shall receive $300 per annum, in addition to his salary as chief clerk, and the Board of Health may, with the approval of the Secretary of the Treasury, pay to its secretary such sum, in addition to his pay as a member of the board, as it may deem proper, not exceeding $100 per month.” “S 7. That all the money hereinbefore authorized to be expended and all contracts made and liabilities incurred by the National Board of Health shall be paid out of the appropriation of five hundred thousand dollars made in the act of Congress approved June second, eighteeen hundred and seventy-nine." 21 Stat. 46, c. 61.

June 16, 1880. The act appropriating money for sundry civil expenses of th government for the fiscal year ending June 30, 1881, contained these items :

“ National Board of Health: For salaries and expenses of the National Board of Health, and to carry out the

purposes of the various acts creating the National Board of Health, seventyfive thousand dollars, or so much thereof as is necessary : Provided, That twenty-five thousand dollars of the appropriation made by the act of Juno second, cighteen hundred and seventy

shall be applied to the same purposes. “For aid to local quarantine stations and for aid to local and state boards of health, to be used in case of epidemic, one hundred thousand dollars; Provider, That fifty thousand dollars of the appropriation made by act of June second, eighteen hundred and seventy-nine,

shall be applied to the same purposes.” 21 Stat. 266, c. 235.

February 8, 1881. Dunwoody's salary as chief clerk was increased to $3000 per annum.

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