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months. From the whole of the judgment an appeal was taken to the supreme court of the territory, and the judge before whom the trial was had gave a certificate that, in his opinion, there was probably cause therefor. The appeal was perfected, and the certificate was filed in the proper office. The defendant thereupon applied to the court in which he was sentenced, to be let to bail pending his appeal. The application was denied, the order reciting that “the court being of the opinion that the defendant ought not to be admitted to bail, after conviction and sentence, unless some extraordinary reason therefor is shown, and there being no sufficient reason shown in this case, it is ordered that the motion and application for bail be and the same is hereby denied, and the defendant be remanded to the custody of the United States marshal.” The accused then sued out an original writ of habeas corpus from*the supreme court of the territory. In his petition therefor he stated that he was then imprisoned and in the actual custody of the United States marshal for the territory at the penitentiary in the county of Salt Lake. He also averred that, upon the denial of bail by the court in which he was tried, "he was remanded to the custody of the said United States marshal, who from thenceforth has imprisoned and still imprisons him" under said order of commitment, which “is the sole and only cause and authority" for his “detention and imprisonment;" that “his said imprisonment is illegal” in that "he has been and is able and now offers to give bail pending his appeal in such sum as the court may reasonably determine;" and that, “as a matter of right, and in the sound exercise of a legal discretion, the petitioner is entitled to bail pending the hearing and determination of said appeal.” The supreme court of the territory overruled the application for bail, and remanded the petitioner to the custody of the marshal. From that order the present appeal has been prosecuted.

F. S. Richards and Wayne Mac Veagh, for appellant. Sol. Gen. Phillips, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

* By the laws of Utah regulating the mode of procedure in criminal cases, it is provided, among other things, that the defendant in a criminal action may appeal to the supreme court of the territory from any order, made after judgment, affecting his substantial rights. Laws Utah, 1878, tit. 8. c. 1, § 360. To that class belonged the order made by the court of original jurisdiction refusing bail, and remanding the accused to the custody of the marshal. But no appeal was taken from that order. And as the accused sued out an original writ of habeas corpus from the supreme court of the territory, we cannot, upon the present appeal, consider whether the court of original jurisdiction properly interpreted the local statutes in holding that the accused “ought not to be admitted to bail, after conviction and sentence, unless some extraordinary reason therefor is shown. There is nothing before us for review, except the order of the supreme court of the territory, which discloses nothing more than the denial of the application to it for bail, and the remanding of the prisoner to the custody of the marshal. That order, in connection with the petition for habeas corpus, assuming all of the allegations of fact contained in it to be true, only raises the question whether, under the laws of the territory, the accused, upon perfecting his appeal and filing the required certificate of probable cause, was entitled, as matter of right and without further showing, to be let to bail, pending his appeal from the judgment of conviction. Upon the part of the government it is insisted that the court below had by the statute a discretion in the premises which, upon appeal, will not be reviewed.

By the laws of the territory it is provided that “an appeal to the supreme court from a judgment of conviction stays the execution of the judgment, upon filing with the clerk of the court in which the conviction was had a

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certificate of the judge of such court, or of a justice of the supreme court, that in his opinion there is probably cause for appeal, but not otherwise;" also, that if this certificate is filed, "the sheriff must, if the defendant is in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment, and detain him to abide the judgment on appeal.” Laws Utah 1878, p. 138. Upon the subject of bail, the same laws provide that "a defendant charged with an offenso punishable: with death cannot be admitted to bail when the proof of his guilt is evident, or the presumption thereof great;” also, that “if the charge is for any other offense, he may be admitted to bail before conviction as a matter of right;" further, that “after conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: (1) As a matter of right when the appeal is from a judgment imposing a fine only; (2) as a matter of discretion in all other cases;" still further, that “in the cases on which the defendant may be admitted to bail upon an appeal, the order admitting him to bail may be made by any magistrate having the power to issue a writ of habeas corpus.Id. 142, 146.

These statutory provisions so clearly indicate the legislative intent that no room is left for interpretation. As the judgment did not impose upon the appellant a fine only, his admission to bail, pending the appeal from that judge ment, was not a matter of right, but was distinctly committed, by the statute, to the discretion of the court or judge to whom the application for bail may be made. The exercise of that discretion is not expressly nor by necessary implication forbidden in cases in which the certificate of probable cause is granted; for, by the statute, that certificate only operated to suspend the execution of the judgment of conviction, requiring the officer having the accused in charge to retain him in his own custody to abide the judgment on appeal. We do not mean to say that the granting of such a certificate is not a fact entitled to weight in the determination of an application for bail, but only that the statute does not make it so far conclusive of the question of bail as to prevent the court from considering every circumstance which should fairly and reasonably control or affect its discretion. Whether the supreme court of the territory abused its discretion in the present case is a question not presented by the record before us; for it does not contain any finding of facts, nor the evidence (if there was any apart from the record of the trial and of the proceedings upon the first application for bail) upon which thea court below acted. Its judgment denying bail cannot, therefore, be reversed, unless, as contended by appellant, the certificate of probable cause necessa.* rily carried with it the right to bail, and deprived the court of all discretion in the premises. But that construction of the statute is not, we think, admissible.

At the argument counsel for appellant laid stress upon the fact, averred in the last petition for habeas corpus, that the order committing him to the custody of the marshal had been executed by confining him at the penitentiary. The return of the officer is that the accused is in his custody under and by virtue of the order of commitment. It is not claimed that he is treated as a convict in the penitentiary, undergoing the sentence pronounced in pursuance of the judgment appealed from, but only that the officer uses that institution as a place for the confinement of the accused while the latter is in his custody. Whether that action of the officer be legal, is a question that does not now arise; for the application to the supreme court of the territory for habeas corpus only raised the question of the right of the accused to be discharged, on bail, from all custody whatever; and the present appeal is from the order, in that court, refusing such discharge, and remanding him to the custody of the marshal. There is no error in the record, and the judgment is affirmed.

(113 U. S. 128)
STEELE, to the Use, etc., 0. UNITED STATES.

(January 19, 1885.) GOVERNMENT PROPERTY-UNAUTHORIZED SALE.

A party to whom has been delivered, without sanction of law, material of old ships, property of the United States, to which he bad no title whatever, by contract or otherwise, is accountable to the government for its full value, notwithstanding that his account has been settled by the officers of the navy department at a suni

less than its full value. Appeal from the Court of Claims. *R. B. Washington and W. D. Davidge, for appellant. Sol. Gen. Phillips, for appellee.

WOODS, J. The appellant was the claimant in the court of claims. He brought his suit April 30, 1880, to recover from the United States the sum of $3,400 for plumbing done by him on the United States steam-ship Quincibaug under a contract made with I. Hanscom, the chief of the bureau of construction and repair of the navy department, on behalf of the government, in the year of 1875. There was no dispute that there was due to him on his contract for work done the sum sued for. The controversy arose on a plea of cross-demand, filed by the United States, which alleged that the officers of the government delivered to the appellant a large amount of old material to be utilized and reworked by him for the plumbing of the Quinnebaug; that a small portion of the material thus delivered he reworked for that purpose, but the greater portion thereof * * he sold to third parties, realizing therefrom the sum of $20,000. The court of claims found that during the spring and summer of the year 1875 there were delivered to the appellant, by R. W. Steele, who was a naval constructor in the United States navy, 103,949 pounds of old material resulting from the breaking up of certain monitors; that before such delivery there had been no survey or inspection of the old material, and that of the amount so delivered the appellant sold and disposed of 98,748 pounds, for which he received money and property to the amount of $8,975.56, and the residue was lost in breaking up, handling, and sorting. These findings fully established the cross-demand of the gove ernment for $8,975.56. The court, therefore, in adjusting the controversy, after charging the appellant with a payment on his claim of $3,900 and another item for $300, about neither of which there was any dispute, held him liable for the amount so received by him for the old material, which was sufficient to extinguish his claim and leave a balance of $3,575.56 due the United States. The court, therefore, rendered judgment against him for that amount, and from that judgment the present appeal is taken.

Upon the facts above stated, it is clear that the judgment of the court of claims was right. But the appellant insists that the other facts found by the court show that it was in error, and that its judgment should have been for the appellant for the amount of the claim for which his suit was brought. These facts were as follows: In the latter part of March, or early in April, 1875, the appellant had an interview, in the city of Washington, with Isaiah Hanscom, chief of the bureau of construction and repair in the navy department, at which the two came to some verbal understanding that the appellant was to do the necessary plumbing on the United States steam-ship Quinnebaug, which was then on the ways in the Philadelphia navy yard, and that Hanscom gave the appellant verbal instructions to go on with the work. In the same interview the matter of using on the Quinnebaug old material taken out of other vessels was talked of, and Hanscom spoke of the material as be. ing worth $2,000, but it did not appear what material or what quantity of material was referred to. Afterwards, on April 6, 1875, the appellant wrote a letter to Hanscom, in which he offered to furnish all the material and 'abor necessary for the plumbing of the Quinnebaug for $14,500, and take in whole

or part payment any brass or lead from old vessels that he could use for that purpose. * On the receipt of this letter, Hanscom directed Edward Hartt, who was a naval constructor on duty at the Philadelphia navy yard, to draw up specitications for the plumbing to be done on the Quinnebaug, and to solicit proposals therefor. Proposals were accordingly called for and received by the bureau of construction and repair, but the proposal contained in the appellant's letter of April 6th was the lowest bid for the work.

On April 15, 1875, Hanscom sent an order in writing to Naval Constructor R. W. Steele to have all the old lead, brass, and composition arising from the breaking up of the monitors, naming them, weighed, boxed up, and sent to Philadelphia, and to report the amount to the bureau. The officer to whom the order was addressed, interpreting it as authority from the bureau to de liver to the appellant the old material therein referred to, delivered it to him, and the appellant received the 103,949 pounds of such material heretofore mentioned as the property of the United States. On July 9, 1875, Naval Constructor R. W.Steele wrote to Hanscom that he had delivered the old material to the appellant, that it was estimated to be worth $2,000, which sum would be deducted from the first payment due him for his work. He added: “I beg to say that it was impossible to arrive at a satisfactory estimate of its value when appraised; there was much alloy and dirt mixed with it, and the cost of transportation and labor in separating and preparing it for use is not known, which makes it necessary to correct the value after I obtain full information on the subject, and before his contract is completed and adjusted." Naval Constructor Steele was led to put this estimate upon the value of the old material by the statement made to him by Naval Constructor Hartt, who was superintending the plumbing on the Quinnebaug, that he supposed its value to be $2,000. But it did not appear that Hartt had ever seen any of the 103,949 pounds of old material, but he assumed its value to be $2,000, and so set it down in his account-book in his office, and so charged it against the appellant in the settlement of the account of the latter.

On July 30, 1875, Hanscom, as chief of the bureau of construction and repair, wrote to the appellant declining his proposal to do the plumbing work on the Quinnebaug for $14,500,*and offered to pay him therefor the sum of $12,000, but with the following stipulation: "The old materials, the govern- ? ment will furnish you to be reworked, which have accumulated from the breaking up of the light-draft monitors, [naming them,] will go towards the materials used in this work; the balance to be paid in two equal payments, in money, on the certificate of the naval contractor superintending the work that the work is satisfactorily completed, according to the specifications which will be furnished.” The appellant accepted this proposition by letter, dated August 2, 1875. There was no proof that he did any work on the Quinnebaug until after this correspondence. Upon these facts the contention of the appellant is that the court should have charged him with the value of the old material at $2,000, and not at $8,975.56. This contention is based on the ground that Naval Constructor R. W. Steele, in his letter to Hanscom, dated July 9, 1875, estimated the old material, delivered to the appellant, to be worth $2,000, and stated that this sum would be deducted from his first payment, and that Naval Constructor Hartt so charged it against him at that sum in the settlement of appellant's account. We think this an inadequate reason for allowing the appellant to appropriate for $2,000 property of the United States, which it is shown he disposed of for $8,975.56. There had been noinspection or appraisement by any officer of the United States of the old material delivered to the claimant, but merely a loose estimate of its value by Naval Constructor Hartt, who had never seen it, and there was no contract between the appellant and the United States which bound the latter to deliver this old material at the estimate put upon it by Hartt, or to deliver what was not used on the Quinnebaug at all.

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The contract between the parties was that made by the offer contained in the letter of Hanscom to the appellant of July 30, 1875, and its acceptance by the appellant in his letter to Hanscom, dated August 2d following. These letters are set out in the appellant's petition as expressing the contract which was the basis of his cause of action. The previous verbal understanding referred to in the findings of the court of claims was merged in it. • It is clear from the terms of the proposition made by Hanscom to the appellant on July 30, 1875, and accepted by the latter on August 2d, that it was only such old material as could be reworked in the plumbing of the Quinnebaug that was to be transferred to the appellant, and its value deducted from the contract price of the work. There was no offer on the part of Hanscom to deliver to the appellant old material which could not be used on the Quinnebaug in payment of the stipulated price for his work. Even if such had been the contract, it would have been unauthorized; for section 1541 of the Revised Statutes provides that “the secretary of the navy is authorized and directed to sell at public sale such vessels and materials of the United States navy as, in his judgment, cannot be advantageously used, repaired, or fitted out; and he shall, at the opening of each session of congress, make a full report to congress of all vessels and materials sold, the parties buying the same, and the amount realized therefrom, together with such other facts as may be necessary to a full understanding of his acts." Section 3618 provides that “all proceeds of old material

shall be deposited and covered into the treasury as miscellaneo w receipts on account of proceeds of government property, and shall not be withdrawn or applied except in consequence of a subsequent appropriation made by law." These sections confer upon the secretary of the navy the only authority by which he can dispose of the materials of the United States navy. When, in the judgment of the secretary, they can be advantageously used, they must be used; when they cannot be so used, they must be sold at public sale, and the proceeds covered into the treasury. No officer of the navy department had any authority, therefore, to deliver to the appellant the materials of the navy to be sold by him, and to allow him to put the proceeds into his own pocket.

If we yield to the contention of the appellant, we should be required to hold that an officer of the navy could, without inspection or appraisement, trade off to a contractor in payment of the money due him on his contract, not only materials of every description, but even the vessels of the United States when, in his judgment, they could not be advantageously used,"repaired, or fitted out. It appears, therefore, that the appellant was not entitled, by the terms of the contract, to the material delivered to and sold by him, and if his contract had so provided, it would have been without authority of the statute, and therefore void. The case of the appellant is not aided by the fact of the delivery to him, before the written contract was made, of the old material in question. The delivery was without any authority of the navy department; and, to put it in the most favorable light for the appellant, the delivery was made to him by mistake. But whether with or without authority of the department, if it was intended to vest in the appellant any title to the material, it was without authority of law, and cannot be set up as a ground of any right in him.

The case, therefore, comes to this: The appellant claims to hold, without accounting therefor, except at less than one-fourth its value, the proceeds of old material belonging to the navy of the United States, which had been delivered to him without the sanction of law, and to which he had no title, either by contract or otherwise. The property was the property of the United States, and the appellant must be held accountable for its full value. The fact that the account of the appellant was settled by the officers of the navy department by charging him with the value of the old material at $2,000 is no bar to the recovery of its real value by the government. The whole transac

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