Subsequent to the judgment below an event occurred which considerably alters this litigation, and certainly the nature and reach of the civil penalties under the False Claims Act. In May 1958 the Supreme Court decided United States v. McNinch, 356 U.S. 595, 78 S.Ct. 950, 2 L.Ed.2d 1001, and Rainwater v. United States, 356 U.S. 590, 78 S.Ct. 946, 2 L.Ed. 2d 996. Up to that time the Government was contending, as they had in a somewhat similar situation before us in United States v. Cochran, 5 Cir., 1956, 235 F.2d 131, certiorari denied 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed.2d 237, approved in note 10 of McNinch, that when the Dealer falsely represented to the Lender that the veteran intended to occupy the property as his home a false claim as to the whole transaction was made against the Government since it was thereby induced to guarantee payment of the loan. McNinch of course, held that under the False Claims Act, extension of the Government's credit was not the making of payment of a claim.
In United States v. McNinch, 356 U.S. 595, 598, 78 S.Ct. 950, 952, 2 L.Ed.2d 1001, it was said that the False Claims Act is actually "a criminal statute" and its provisions "must be carefully restricted, not only to their literal terms but to the evident purpose of Congress in using those terms, particularly where they are broad and susceptible to numerous definitions." In determining what should be considered a "claim against the Government", the court quoted from United States v. Tieger, 3 Cir., 234 F.2d 589, 591, certiorari denied 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed.2d 237, as follows: "* * * `the conception of a claim against the government normally connotes a demand for money or for some transfer of public property.'"
JOHN R. BROWN, Circuit Judge. In his application for writ of habeas corpus to the court below, appellant Goldsby alleged that his conviction for murder and sentence of death imposed by the courts of Mississippi, Goldsby v. State, Miss., 78 So.2d 762; certiorari denied 350 U.S. 925, 76 S.Ct. 216, 100 L. Ed. 809; Goldsby v. State, Miss., 86 So.2d 27; certiorari denied 352 U.S. 944, 77 S.Ct. 266, 1 L.Ed.2d 239, constitute a deprivation of his liberty without due process of law in violation of the Fourteenth Amendment to the United States Constitution because of the systematic exclusion of members of his, the Negro race, from the lists from which grand and petit juries are selected in Carroll County, Mississippi and therefore from the grand jury which indicted him and the petit jury before which he was tried. It was alleged that under the Mississippi statutes, prospective jurors are to be selected from the lists of qualified voters and that although Carroll County, according to the 1950 Census, had a population of 15,449 persons of which 8,829 were Negroes, 5,300 of whom were by reason of age and educational qualifications eligible to qualify as voters, that at the time the indictment was returned against appellant and for a long time before, no Negro had ever appeared upon the voting lists and therefore none had been included on the lists of prospective jurors.
Another ground for holding the statute not applicable in case No. 7224 is that the obtaining of the guaranty of loan was not the making of a claim within the meaning of the statute. United States v. Tieger, 3 Cir., 234 F.2d 589, certiorari denied 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed.2d 237; United States v. Cochran, 5 Cir., 235 F.2d 131, certiorari denied 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed. 2d 237. For the reasons stated, the decision in No. 7224 will be affirmed, the decision in No. 7321 will be reversed in so far as it gives judgment against defendants and affirmed in so far as it denies recovery of damages under the statute, and the decision in No. 7333 will be reversed in so far as it gives judgment against defendants.
In short, the purpose was to stop the "plundering of the public treasury." United States v. McNinch, supra, 356 U.S. at 599, 78 S.Ct. 950. While it is clear that the False Claims Act was not designed to reach every kind of fraud practiced on the United States, United States v. McNinch, supra, at 599, 78 S.Ct. 950; United States v. Cochran, 235 F.2d 131 (5th Cir.), cert. denied, 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed.2d 237 (1956); United States v. Marple Community Record, Inc., 335 F. Supp. 95 (E.D.Pa. 1971), it is equally clear that its purpose was to reach "all fraudulent attempts to cause the Government to pay out sums of money." United States v. Neifert-White Company, supra, 390 U.S. at 233, 88 S.Ct. at 962.
As to the second point, this Court held that appellant had failed to raise it in the trial court or in this Court in the appeal on the merits; that there was no evidence in the record to support that averment, or in the petition for the writ; and appellant had effectively waived raising at that late date this issue. 226 Miss. 20, 86 So.2d 27; Cert. denied, 352 U.S. 944, 77 S.Ct. 266, 1 L.Ed. 239. Hence the Court set March 23, 1956, for date of execution of the sentence. Later the State filed a motion to set another date for execution of the death sentence, which was fixed for February 12, 1957. 226 Miss. 30, 91 So.2d 75.
" 571 F.2d at 550. RYA cites A.B. Phillips v. Fidalgo Island Packing Co., 238 F.2d 234, 235 (9th Cir.) (per curiam), cert. denied, 352 U.S. 944, 77 S.Ct. 262, 1 L.Ed.2d 237 (1956), for the proposition that a delegation of authority by a public officer terminates when the officer departs from office. RYA mischaracterizes A.B. Phillips.
A false claim is actionable under the Act even though the United States has suffered no measurable damages from the claim. Fleming v. United States, 336 F.2d 475, 480 (10th Cir. 1964), cert. denied, 380 U.S. 907, 85 S.Ct. 889, 13 L.Ed.2d 795 (1965); United States v. Tieger, 234 F.2d 589, 590 n. 4 (3rd Cir.), cert. denied, 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed.2d 237 (1956). All defendants in the action, including Hughes, are jointly and severally liable for this amount.
At that time and for many years thereafter, the normal and usual understanding of a "claim against the Government" was a demand for money or property as of right. See United States v. McNinch, 356 U.S. 595, 599, 78 S.Ct. 950, 2 L.Ed.2d 1001 (1958); United States v. Tieger, 234 F.2d 589, 591 (3rd Cir.), cert. denied, 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed.2d 237 (1956). This traditional understanding of "claim against the Government" is reflected in the name of our court and the limitation of our jurisdiction to "judgments for money," United States v. Alire, 73 U.S. (6 Wall.) 573, 575, 18 L.Ed. 947 (1868); see United States v. King, 395 U.S. 1, 2-3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969).
In the absence of a statute, we are remanded to state decisional law on the subject. Mississippi decisional law is that a challenge to the array or a motion to quash the venire should be made at the first opportunity, as soon as the facts which warrant it are known, Goldsby v. State, 226 Miss. 1, 86 So.2d 27 (1956), cert. denied, 352 U.S. 944, 77 S.Ct. 266, 1 L.Ed.2d 239. The Mississippi statute for the impaneling of petit jurors (other than special venires in cases of homicides), in effect in 1971, reads as follows: