decided: January 3, 1927.
GETTINGER AND POMERANTZ, CO-PARTNERS
ERROR TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK.
Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone
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MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The District Court entered final judgment for defendants in error March 9, 1925, and certified that the only question involved was one of jurisdiction.
By an indictment returned into the United States District Court, Northern District of New York, February 1920, defendants in error were charged with violating § 4 of the Lever Act, c. 53, 40 Stat. 276, 277, as amended October 22, 1919, c. 80, 41 Stat. 297, 298, by selling women's
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apparel at unjust and unreasonable rates. They entered pleas of nolo contendere October 8, 1920, and each undertook to "waive any and all claims which I now have or hereafter may have to any and all fines which the court may see fit to impose upon me upon such plea, except in the event that the so-called Lever Act under which said indictment is founded shall be declared unconstitutional by the Supreme Court of the United States." The court adjudged them guilty and imposed a fine of five thousand dollars. This was paid to the clerk and by him passed into the Treasury of the United States.
February 28, 1921, this court held § 4 of the Lever Act invalid. United States v. Cohen Grocery Co., 255 U.S. 81. April 25, 1924, the court below undertook to set aside the judgment of conviction and sentence entered there October 8, 1920.
The present proceeding, begun May 24, 1924, set up the claim that under the above-stated facts the United States became obligated to repay to plaintiffs in error the sum of five thousand dollars with interest. A demurrer which raised the question of the court's jurisdiction was overruled and the matter come here by direct writ of error.
The attempt by plaintiffs in error to reserve rights if the Lever Act should be held unconstitutional amounted at most to a protest, possibly sufficient to overcome the suggestion of an estoppel, but no contract arose out of it which obligated the United States to return the fine. Neither the court nor any federal officer had authority to make such an agreement. The controlling general principles are sufficiently stated in Russell v. United States, 182 U.S. 516, 530; United States v. Holland-America Lijn, 254 U.S. 148; United States v. Minnesota Mutual Investment Co., 271 U.S. 212.
The court below was without jurisdiction and should have dismissed the complaint. Its judgment must be reversed.
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