Opinion of the Court.

17 Vroom, (46 N. J. Law,) 289; De Camp v. Hibernia Rail road, 18 Vroom, (47 N. J. Law,) 43, 518.

There are reasons why a writ of certiorari to review the appointment of the commissioners before they have acted, may be allowed in the courts of New Jersey, under the law of the State, which can have no application to proceedings in the Circuit Court of the United States, under the act of Congress. The appointment of commissioners under the state practice is made by a justice of the Supreme Court of the State, as a judge and not as a court, and is the first and last step to be taken by him. The award of the commissioners is not to be returned to him or to that court, but to the office of the clerk of the county in which the land lies, and is subject to appeal to a distinct tribunal, the circuit court of the county. Besides, the Supreme Court of New Jersey has power to issue writs of certiorari, according to the course of the common law; and a writ of certiorari to quash proceedings before a special tribunal for want of jurisdiction, or to bring them up to be completed, may issue at any stage of the proceedings, differing in this respect from a writ of error. Hoxsey v. Paterson, 10 Vroom, (39 N. J. Law,) 489; Mowery v. Camden, 20 Vroom, (49 N. J. Law,) 106.

But under the act of Congress the application for the appointment of commissioners and the order appointing them are required to be made, not to and by a judge sitting at chambers, but "in the Circuit Court of the United States." The award of the commissioners so appointed must be filed and recorded somewhere, in order to preserve the proof of the rights of both parties under it. To infer that it should be filed and recorded in the office of the clerk of the county in which the land lies would be most incongruous; for that would either subject an award of commissioners appointed by a court of the United States to appeal and review in a court of the State; or else require an award recorded in the clerk's office of a court of the State to be reviewed in the Circuit Court of the United States. The provisions of the statute of the State in this particular being inapplicable, and the act of Congress containing no special direction on the subject, the

Opinion of the Court.

only reasonable conclusion is that the report of the commissioners appointed by the Circuit Court of the United States must be returned to the court which appointed them, be made matter of record therein, and be subject to be confirmed or set aside by that court. Boston & Worcester Railroad v. Western Railroad, 14 Gray, 253, 258. And if a trial by jury should be had, by way of appeal from the assessment of the commissioners, it must likewise be in the same court. The case throughout, from the application of the corporation for the appointment of commissioners to assess damages to the owner of the land proposed to be taken, until judgment upon the award of the commissioners or upon the verdict of a jury, assessing those damages, remains in the Circuit Court of the United States and under its supervision and control.

The action of that court in this case, as in other cases on the common law side, is not reviewable by this court by writ of certiorari; United States v. Young, 94 U. S. 258; but only by writ of error, which does not lie until after final judgment, disposing of the whole case, and adjudicating all the rights, whether of title or of damages, involved in the litigation. The case is not to be sent up in fragments by successive writs of error. Act of September 24, 1789, c. 20, § 22, 1 Stat. 84; Rev. Stat. § 691; Rutherford v. Fisher, 4 Dall. 22; Holcombe v. McKusick, 20 How. 552, 554; Louisiana Bank v. Whitney, 121 U. S. 284; Keystone Co. v. Martin, 132 U. S. 91; McGourkey v. Toledo & Ohio Railway, 146 U. S. 536.

As by the proceedings in the Circuit Court of the United States, in the case at bar, neither the title of the corporation. in the land to be taken, nor the right of the owner to damages for taking it, would be adjudicated or established before the return of the award of the commissioners, it necessarily follows, under the acts of Congress and the decisions of this court, that the order appointing commissioners was interlocutory only, and that this writ of error was prematurely sued out, and must be dismissed for want of jurisdiction.

The case of Wheeling & Belmont Bridge v. Wheeling Bridge, cited by the plaintiff in error, is distinguishable from the present case.

Jurisdiction of a writ of error to the Su

Syllabus.

preme Court of Appeals of West Virginia, affirming an order appointing commissioners under a somewhat similar statute, was there entertained by this court, solely because that order had been held by the highest court of the State to be an adjudication of the right to condemn the land, and to be a final judgment, on which a writ of error would lie, and could therefore hardly be considered in any other light by this court in the exercise of its jurisdiction to review the decisions of the highest court of the State upon a Federal question. 138 U. S. 287, 290. To have held otherwise might have wholly defeated the appellate jurisdiction of this court under the Constitution and laws of the United States; for if the highest court of the State held the order appointing commissioners to be final and conclusive unless appealed from, and the validity of the condemnation not to be open on a subsequent appeal from the award of damages, it is difficult to see how this court could have reached the question of the validity of the condemnation, except by writ of error to the order appointing commissioners. That case, therefore, affords no precedent or reason for sustaining this writ of error to the Circuit Court of the United States.

Writ of error dismissed for want of jurisdiction.

SMITHMEYER v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 645. Submitted January 9, 1893. — Decided January 23, 1893.

By sec. 7 of the act of October 2, 1888, 25 Stat. 505, 523, c. 1069, in regard to the building for the Library of Congress, which provided that all contracts for the construction of the building should be made by the Chief of Engineers of the Army, and repealed so much of the act of April 15, 1886, 24 Stat. 12, c. 50, as required the construction of the building according to the plan submitted by John L. Smithmeyer, and enacted that "hereafter, until otherwise ordered by Congress, no work shall be done in the construction of said Library except such as is herein provided for, and all contracts for work or materials not necessary for

Opinion of the Court.

the execution of the work contemplated herein are hereby rescinded," it was provided that "all loss or damage occasioned thereby or arising under said contracts, together with the value of the plan for a Library building," so submitted by Smithmeyer, "may be adjusted and determined by the Secretary of the Interior, to be paid out of the sums heretofore or hereby appropriated." Smithmeyer and his partner afterwards brought a suit in the Court of Claims against the United States, to recover $210,000 as the value of plans and drawings made by them for a building for the Library, which were delivered to and accepted by the United States, and used in constructing the building. The Court of Claims held, that the acts of the parties indicated that the services of the plaintiffs should be estimated according to the rule of quantum meruit, and not according to the schedule of charges of the American Institute of Architects, and that they were entitled to recover $8000 a year for six years' services. Held, that that was a proper and reasonable decision.

Although the United States did not appeal, this court considered the question of the jurisdiction of the Court of Claims, and held, that, as the right of action of the plaintiffs accrued in 1886, and the Court of Claims from that time had full jurisdiction over it under its general jurisdiction, and as the general jurisdictional act of that court was not repealed by the act of 1888, to the extent of this case, the plaintiffs could waive the benefit of the additional method of adjustment provided by the act of 1888, and the general jurisdiction of that court and such additional method could both of them well stand together.

THIS was an appeal from a judgment in the appellants' favor in the Court of Claims for $48,000 damages, their demand sued for being $210,000. No appeal was taken by the government.

The case is stated in the opinion.

Mr. John Paul Jones, Mr. Reese H. Voorhees, and Mr. James Coleman for appellants.

Mr. Solicitor General and Mr. Felix Brannigan for appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a suit brought against the United States in the Court of Claims, by John L. Smithmeyer and Paul J. Pelz, architects, to recover the sum of $210,000, as 3 per cent on $7,000,000, the alleged cost of the building for the Library of Congress, when completed.

Opinion of the Court.

The petition alleges that the claimants made and prepared the general plans and drawings for the Library building now in process of construction at Washington City; that from the year 1873 to the year 1886, they, at the request of the United States, were employed in making plans and drawings for a building for the Library; that in 1886 such plans and drawings were delivered to the United States and accepted by the latter, which thereafter used and is using the same in the construction of said Library building; that it will cost, when completed, $7,000,000; that the customary charge by architects for the making of general drawings and plans for the construction of said building, and the reasonable value of such service so rendered by them, is 24 per cent upon the cost of the building; and that there is now due to the claimants 3 per cent on the cost of said building, namely, $210,000.

The usual general traverse was put in by the United States. The Court of Claims heard evidence, and filed findings of fact, and afterwards additional findings of fact, all of which are set forth in the margin,1 with a conclusion of law that, upon the

1 Original Findings of Fact.

1. The claimants, John L. Smithmeyer and Paul J. Pelz, were at the times hereinafter mentioned copartners doing business as architects in the city of Washington.

2. From the year 1873 until the 15th April, 1886, the claimants devoted their time as architects in the making of plans and drawings for a building for the Library of Congress. They acted under the direction and at the request of the commissions and committees of Congress mentioned in the following acts of Congress, viz.: The commission created by the sundry civil appropriation act, March 3, 1873, 17 Stat. 510, 513; the Joint Committee on the Library of Congress, sundry civil act, June 23, 1874, 18 Stat. 204, 226, and the legislative appropriation act, August 15, 1876, 19 Stat. 143, 168; the commission on the enlarged accommodation for the Library of Congress, act April 3, 1878, 20 Stat. 35; the joint select committee on additional accommodation for the Library of Congress, organized under the act June 8, 1880, 21 Stat. 165; deficiency act, March 3, 1881, 21 Stat, 414, 424; and the act April 15, 1886, 24 Stat. 15.

3. Under the act 3d March, 1873, providing for "a plan for a new library building for a Library of Congress," the commission appointed thereunder published and issued the following prospectus or invitation to architects: