Opinion of the Court.

When the two years which terminated the existence of the commission had expired, a considerable balance of this sum remained in the hands of the government, against which no claims had been established.

In this condition a special act of Congress authorized Atocha to present his claim to the Court of Claims, and if established to the satisfaction of that court, it was to be paid out of this fund. That court found in his favor, and the United States asking an appeal it was refused. On an application to this court for a writ of mandamus to compel the Court of Claims to allow the appeal, it was urged by counsel for the government that the case being one cognizable under the general jurisdiction of that court on an implied contract, there was a right to appeal, though by the special statute referring the case to that court no such right was given.

The court, in reply to this, said that since the act of March 3, 1862, in which the provision, embodied as § 1066 of the Rev. Stat., was first passed, the Court of Claims had no jurisdiction over this class of cases by virtue of the acts conferring its general powers. "These acts have since then (said the court) applied only to claims made directly against the United States, and for payment of which they were primarily liable, if liable at all, and not to claims against other governments, the payment of which the United States had assumed or might assume by treaty. The act of June 25, 1868, whilst allowing appeals in behalf of the United States from all final judgments of the Court of Claims, did not change the character of the claims of which that court could previously take cognizance. Claims under treaty stipulations are not brought within it, and when jurisdiction over such claims is conferred by special act, the authority of that court to hear and determine them is limited and controlled by the provisions of that act."

That was a case in which, by the express terms of the treaty, the United States had assumed the debt of Mexico to Atocha and others of his class. The present is a case in which such assumption is implied from the circumstances of the treaty and the receipt of the money.

In the former case the United States agreed, for a valuable

Opinion of the Court.

consideration in land or territory, to pay to Mexico $3,250,000 to her creditors residing in the United States. In the latter the government received $15,500,000 from England, under what is alleged to be an implied promise to pay a class of American claims against her. We can see no difference in principle in the two cases, as they have relation to the fact that both claims grew out of, and were dependent on, treaty stipulations.

This limitation of the jurisdiction of the Court of Claims is in accord with the uniform course of the government in dealing with claims of our citizens against foreign governments. In such cases, where those governments have acknowledged a liability, but the amount or the number of the claims is in controversy, mixed commissions, composed of arbitrators appointed by each party, and an umpire, have usually been created by a treaty, which made the award of the commission obligatory.

In cases like that of Guadaloupe Hidalgo and the Treaty of Washington, under which the present claim arises, where the foreign nation pays, or agrees to pay, to this government a fixed sum in discharge of the class of claims which is the subject of treaty, Congress has provided a commission at home to pass upon the claims asserted under the treaty.

In no case that we are aware of has Congress conferred on any judicial tribunal the power to adjudicate such claims as a class, and in the case of Atocha, where a reference of a single claim was made to the Court of Claims, its action was rather in the nature-of a commission to ascertain the facts than a judicial tribunal, as in other cases, and hence no appeal was allowed.

In the case of the Geneva Award, one such commission has been created by act of Congress, and its term of service has expired. Another is now in existence, under another act, for the same purpose, namely, the distribution of the sum paid under that award, and Congress is still devoting its attention to other means for the proper distribution of the remainder of this fund.

For these reasons we are of opinion that the Court of Claims

Syllabus.

had no jurisdiction of the case presented by the petition of · appellant, and its decree dismissing it is

Affirmed.

In Paulson's case the learned Justice added: This case was tried at the same time, in the Court of Claims, as the Great Western Insurance Co. v. the same defendant, and was decided on the same facts and the same judgment was then rendered.

It was argued in this court with that case, and the judgment of the Court of Claims is affirmed for the reasons given in the opinion in that case.

FOSTER v. KANSAS, ex rel. JOHNSTON, AttorneyGeneral.

IN ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.

Submitted October 14, 1884.-Decided October 27, and November 10, 1884.

A writ of error operates as a suspersedeas only from the time of the lodging of the writ in the office of the clerk where the record to be examined remains. § 1007 Rev. Stat., concerning stay of execution does not apply to judgments of highest State courts. Doyle v. Wisconsin, 94 U, S. 50, affirmed.

When a judgment of a State court removes a State officer and thereby vacates the office, and a writ of error from this court is allowed for the reversal of that judgment, one appointed to the vacancy with knowledge of the granting of the writ of error on the part of the judge of the Supreme Court of the State making the appointment, but before the filing of the writ in the clerk's office where the record remains, is guilty of no contempt of this court in assuming to perform the duties of the office.

A State law prohibiting the manufacture and sale of intoxicating liquors, is not repugnant to the Constitution of the United States. Bartemeyer v. Iowa, 18 Wall. 129, and Beer Co. v. Massachusetts, 97 U. S. 25, affirmed, Information in the nature of quo warranto is a civil proceeding in Kansas. Ames v. Kansas, 111 U. S. 449, affirmed.

A State statute regulating proceedings for removal of a person from a State office is not repugnant to the Constitution of the United States, if it provides for bringing the party into court, notifies him of the case he has to meet, allows him to be heard in defence, and provides for judicial deliberation and determination. Kennard v. Louisiana, 92 U. S. 480, affirmed.

Argument against the Motion.

The suit below was a proceeding to remove Foster from the office of Attorney-General of the State of Kansas. Judgment for removal, to reverse which a writ of error was sued out. The defendant in error moved to dismiss the writ for want of jurisdiction, and coupled the motion with a motion to affirm under the judgment. After the writ of error and supersedeas were obtained from this court, but before presentation in the court below, one Moore was appointed successor to Foster and assumed the duties of the office. The other facts connected with the appointment and assumption of office appear in the opinion. The counsel for the plaintiff in error obtained a rule against Moore to show cause why he should not be committed for contempt in violating the supersedeas. The two motions were heard together.

Mr. W. Hallett Phillips for the rule and against the motion to dismiss or affirm.-The appointment of Moore after the date of such allowance was nuility, and Moore by accepting the appointment and undertaking to discharge the functions of the office, acted in gross violation of the supersedeas. Unless we are correct in this position, the supersedeas was a mere mockery. Thus in Green v. Van Duskerk, Wall. 448, which came here under the 25th section, an order for execution on a judgment was entered, notwiths anding the plaintiff in error had obtained a supersedeas, within ten days after judgment. On application of the plaintiff in error, this court ordered a writ of supersedeas to issue. The Chief Justice delivering the unanimous opinion of the court says: "The unsuccessful party had ten days from that entry (of judgment) to take out a writ of error and make it a supersedeas; and he duly availed himself of this right by service of the writ of error on the 30th of February, 1866, and giving the required bonds." See also Slaughter-House Cases, 10 Wall. 273, 291; Stafford v. Union Bank of Louisiana, 16 How. 135, 139; Adams v. Law, 16 How. 144, 148. We would confidently submit this view, were it not for the fact that this court, in the recent case of Doyle v. Wisconsin, 94 U. S. 40, has declared that the provision in the act of 1875, re-enacting the stay of ton days contained in the act of 1789, has reference only to the

Opinion of the Court.

courts of the United States. No reference is made in the opinion of the court to the previous decisions. We submit that it cannot be reconciled with those decisions, nor with the long settled practice of the court. In Commissioners v. Gorman, 19 Wall. 661, no bond having been given within the ten days from judgment, execution issued. The plaintiff in error gave bond within sixty days. A motion was made that a writ should issue from this court to restore the plaintiff in error to the office, from which he had been ousted under the execution. The contention was that under the act of June 1, 1872, a party had sixty days within which to give the bond, and that no execution could issue during that period. This court, however,. held, that under the act there was only an absolute stay of execution for ten days from judgment; that although a bond might be given within the sixty days, the supersedeas only dated from the time of the approval and filing of the bond. In that case the execution had issued prior to the filing of the bond, and no notice was given that any had been approved. It nowhere appeared from the record when the bond was approved. The court held that under these circumstances the writ of error operated as a supersedeas only from the filing.

Mr. A. L. Williams (Mr. Garver and Mr. Bond were with him) for the State of Kansas contra.

MR. CHIEF JUSTICE WAITE, on the 27th of October, delivered the opinion of the court on the matter of the rule.

The showing under this rule presents the following facts: The Supreme Court of Kansas rendered a judgment on the 1st of April, 1884, removing Foster, the plaintiff in error, from the office of county attorney of Saline County. A statute of the State makes it the duty of the judge of the District Court of a county to fill the office of county attorney when a vacancy exists. A writ of error from this court for the reversal of the judgment of the Supreme Court was duly allowed in Washington on the 5th of April, and a supersedeas bond approved, and a citation signed. Notice of these facts was telegraphed on the same day, by the counsel of Foster in Washington, to his