The scheme of the Judiciary Act of March 3, 1891, c. 517, 26
Stat. 826, precludes the contention that certificates of division
of opinion in criminal cases may still be had under Rev.Stat.
§§ 651 and 697.
Review by appeal, by writ of error or otherwise, must be as
prescribed by that act, and review by certificate is limited by it
to the certificate by the circuit court, made after final judgment,
of questions made as to their own jurisdiction, and to the
certificate by the circuit courts of appeal,
Page 163 U. S. 133
of questions of law in relation to which the advice of this
Court is sought as therein provided, and these certificates are
governed by the same general rules as were formerly applied to
certificates of division.
On the twenty-third day of November, A.D. 1891, the United
States District Attorney for the Southern District of Ohio filed a
criminal information in the Circuit Court of the United States for
that district, against Frank M. Rider, John F. Burgess, and Samuel
N. Rutledge, charging that on October 15, A.D. 1891, defendants
"were then and there the county commissioners in Muskingum
County, in the State of Ohio, and then and there the persons
empowered by the law of Ohio to construct, alter, and keep in
repair all necessary bridges over streams and public canals, on all
state and county roads, and then and there the persons as such
county commissioners controlling the bridge across the Muskingum
River, between Taylorsville and Duncan's Falls, Muskingum County,
Ohio, and the Secretary of War of the United States, having good
reason to believe that said bridge was then and there an
unreasonable obstruction to the navigation of said Muskingum River,
one of the navigable streams over which the United States has
jurisdiction, on the 19th day of December, 1890, gave notice in
writing to the said defendants, commissioners as aforesaid, setting
forth in substance that the said bridge was considered an
obstruction to navigation by reason of the fact that it had no draw
for the passage of boats desiring to navigate the Muskingum River
by way of the new lock just above the south end of the new bridge
at Taylorsville, Ohio. And, in order to afford said commissioners a
reasonable opportunity to be heard and give evidence in regard to
said complainant, Tuesday, the 6th of January, 1891, was set and
named as the day when such evidence should be heard before
Lieutenant Colonel Wm. E. Merrill, Corps of Engineers at the United
States Engineer's office in Zanesville, Ohio, and which said day of
hearing, at the request of defendants, was extended to the third
day of February, 1891. And afterwards, to-wit, on the 25th day of
February, 1891, and after said day of hearing, the Secretary of War
gave notice in writing to said defendants,
Page 163 U. S. 134
controlling said bridge as aforesaid, that the said bridge was
and is an unreasonable obstruction to the free navigation of the
said river, one of the navigable waters of the United States, on
account of not being provided with a draw span below the new United
States lock No. 9 in said river, and requiring the following change
to be made,
viz., the construction of a draw span in said
bridge below the said lock in accordance with the plan shown in a
map attached to said notice and served upon said defendants, and
prescribing that said alteration shall be made and completed within
a reasonable time, to-wit, on or before the 30th day of September,
1891, and that the service of said notice as aforesaid was made on
the 3d day of March, 1891, by delivering, personally, a copy
thereof to said commissioners at their office in Zanesville, Ohio.
And the said Frank M. Rider, John F. Burgess, and Samuel N.
Rutledge, County Commissioners of Muskingum County, Ohio, as
aforesaid, did unlawfully, on, to-wit, the 15th day of October,
1891 at the place aforesaid and after receiving notice to that
effect, as hereinbefore required, from the Secretary of War and
within the time prescribed by him, willfully failed and refused to
comply with the said order of the Secretary of War and to make the
alterations set forth in said notice, contrary to the form of
sections 4 and 5 of an Act of Congress approved September 19, 1890,
in such case made and provided, and against the peace and dignity
of the United States of America."
The defendants were tried December 11, 1891, and found guilty as
charged in the information, whereupon they moved for a new
trial.
On the trial before the district judge, certain questions on the
constitutionality of the sections of the Act of September 19, 1890,
26 Stat. 453, c. 907, §§ 4, 5, under which the
information was filed, were reserved for hearing and decision upon
a motion for a new trial before the circuit and district judges.
The motion coming on to be heard, those judges were divided in
opinion, and certified, under section 697 of the Revised states,
the points of disagreement to this Court, the questions upon which
such division of opinion took place being as follows:
Page 163 U. S. 135
"1st. Whether Congress has the power to confer upon the
Secretary of War the authority attempted to be conferred by said
sections 4 and 5 of the Act of September 19th, 1890, to determine
when a bridge is an unreasonable obstruction to the free navigation
of a river."
"2d. Whether the failure to comply by persons owning and
controlling the said bridge with the order of the Secretary of War
can lawfully subject them to a prosecution for a misdemeanor."
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
The appellate jurisdiction of this Court is defined by the acts
of Congress. By section 6 of the Act of April 29, 1802, 2 Stat.
159, c. 31, whenever there was a division of opinion in the circuit
court upon a question of law, the question might be certified to
this Court for decision, provided that the case might proceed in
the circuit court if in its opinion further proceedings could be
had without prejudice to the merits, and that no imprisonment
should be allowed or punishment inflicted upon which the judges
were divided in opinion.
In
United States v.
Daniels, 6 Wheat. 542,
19 U. S. 547,
Chief Justice Marshall explained that
"previous to the passage of that act, the circuit courts were
composed of three judges, and the judges of the supreme court
changed their circuits. If all the judges were present, no division
of opinion could take place. If only one judge of the supreme court
should attend and a division should take place, the cause was
continued till the next term, when a different judge would attend.
Should the same division continue, there would then be the opinion
of two judges against one, and the law provided that in
Page 163 U. S. 136
such case that opinion should be the judgment of the court."
Act March 2, 1793, 1 Stat. 333, c. 22, §§ 2, 333;
Davis v.
Braden, 10 Pet. 286. But, continued the Chief
Justice, the act of 1802 made the judges of the Supreme Court
stationary, so that the same judges constantly attended the same
circuit, and, the court being always composed of the same two
judges, any division of opinion would remain, and the question
continue unsettled. "To remedy this inconvenience, the clause under
consideration was introduced." 6 Wheat.
19 U. S. 548;
Ex Parte
Milligan, 4 Wall. 2.
The Act of April 10, 1869, 16 Stat. 44, c. 22, provided for the
appointment of a circuit judge in each circuit, but this did not
repeal the act of 1802, as the same necessity existed as before for
the power to certify questions.
Insurance
Co. v. Dunham, 11 Wall. 1.
By the Act of June 1, 1872, 17 Stat. 196, c. 255, whenever, in
any proceedings or suit in a circuit court there occurred any
difference of opinion between the judges, the opinion of the
presiding judge was to prevail for the time being, but upon the
entry of a final judgment, decree, or order, and a certificate of
division of opinion as under the act of 1802, either party might
remove the case to this Court on writ of error or appeal, according
to the nature of the case. This act continued in force about two
years, when it was supplanted by sections 650, 652, and 693 of the
Revised Statutes, by which its provisions were restricted to civil
suits and proceedings, and by sections 651 and 697 the provisions
of section 6 of the act of 1802 were reenacted as to criminal
cases.
United States v. Sanges, 144 U.
S. 310,
144 U. S. 321.
These sections are printed in the margin.
163 U.
S. 132ast|>*
Page 163 U. S. 137
In civil cases, prior to March 3, 1891, the appellate
jurisdiction was limited by the sum or value of the matter in
dispute; but the jurisdiction on certificate was not dependent
thereon, and after final judgment or decree, if the amount in
controversy reached the jurisdictional amount, the whole case was
open for consideration on error or appeal, while, if it fell below
that, only the questions certified could be examined.
Allen v.
St. Louis Bank, 120 U. S. 30;
Dow v. Johnson, 100 U. S. 158. It
has always been held that the whole case could not be certified.
Jewell v. Knight, 123 U. S.
433.
In short, under the Revised Statutes, as to civil cases, the
danger of the wheels of justice being blocked by difference
Page 163 U. S. 138
of opinion was entirely obviated, and the provision for a
certificate operated to give the benefit of review where the amount
in controversy was less than that prescribed as essential to our
jurisdiction, while as to criminal cases a certificate of division
was the only mode in which alleged errors could be reviewed.
The first act of Congress which authorized a criminal case to be
brought from the circuit court of the United States to this Court,
except upon a certificate of division of opinion, was the Act of
February 6, 1889, c. 113, � 6, by which it was enacted that,
"in all cases of conviction" of a "capital crime in any court of
the United States," the final judgment "against the respondent"
might, on his application, be reexamined, reversed, or affirmed by
this Court on writ of error. Up to that time, this Court had no
general authority to review on error or appeal the judgments of the
circuit courts of the United States in cases within their criminal
jurisdiction.
United States v. Sanges, 144 U.
S. 310,
144 U. S. 319;
Cross v. United States, 145 U. S. 571,
145 U. S.
574.
By section 4 of the Judiciary Act of March 3, 1891, 26 Stat.
826, c. 517, it was provided that
"the review by appeal, by writ of error, or otherwise from the
existing circuit courts shall be had only in the Supreme Court of
the United States, or in the circuit courts of appeals hereby
established, according to the provisions of this act regulating the
same."
By section 5, appeals or writs of error might be taken from the
circuit court directly to this Court in certain enumerated classes
of cases, including "cases of conviction of a capital or otherwise
infamous crime." And by section 6, the judgments or decrees of the
circuit courts of appeals were made final "in all cases arising
under the criminal laws," and in certain other classes of cases,
unless questions were certified to this Court or the whole case
ordered up by writ of certiorari, as therein provided.
American
Construction Co. v. Jacksonville Railway Co., 148 U.
S. 372,
148 U. S. 380.
Thus, appellate jurisdiction was given in all criminal cases by
writ of error either from this Court or from the circuit courts of
appeals, and in all civil cases by appeal or error, without
Page 163 U. S. 139
regard to the amount in controversy, except as to appeals or
writs of error to or from the circuit courts of appeals in cases
not made final, as specified in section 6.
By section fourteen, it was provided that
"all acts and parts of acts relating to appeals or writs of
error inconsistent with the provisions for review by appeals or
writs of error in the preceding sections five and six of this act
are hereby repealed,"
and the particular question before us is whether sections 651
and 697 of the Revised Statutes, in relation to certificate of
division of opinion in criminal cases, though not expressly
repealed, still remain in force. If so, and such division of
opinion can be certified before final judgment, then all criminal
cases, including those in which the judgments and decrees of the
circuit courts of appeals are made final [of which the case at bar
is one], as well as those which may be brought directly to this
Court, might at preliminary stages of the proceedings be brought
before us on certificate, and, after judgment, the whole subject be
reexamined on writ of error from one or the other court. This
result, in itself, we think, could not have been intended, and it
is wholly inconsistent with the object of the Act of March 3, 1891,
which was to relieve this Court and to distribute between it and
the circuit courts of appeals substantially the entire appellate
jurisdiction over the circuit courts of the United States.
McLish v. Roff, 141 U. S. 661;
Lau Ow Bew's Case, 144 U. S. 47;
Construction Co. v. Railway Co., 148 U.
S. 372.
We are of opinion that the scheme of the Act of March 3, 1891,
precludes the contention that certificates of division of opinion
may still be had under sections 651 and 697 of the Revised
Statutes.
Review by appeal, by writ of error, or otherwise must be as
prescribed by the act, and review by certificate is limited by the
act to the certificate by the circuit courts, made after final
judgment, of questions raised as to their own jurisdiction, and to
the certificate by the circuit courts of appeals of questions of
law in relation to which our advice is sought as therein provided,
and these certificates are governed by the same general rules as
were formerly applied to certificates of
Page 163 U. S. 140
division.
Maynard v. Hecht, 151 U.
S. 324;
Watch Co. v. Robbins, 148 U.
S. 266.
It is true that repeals by implication are not favored, but we
cannot escape the conclusion that, tested by its scope, its obvious
purpose, and its terms, the Act of March 3, 1891, covers the whole
subject matter under consideration, and furnishes the exclusive
rule in respect of appellate jurisdiction on appeal, writ of error,
or certificate.
Its provisions and those of the Revised Statutes in this regard
cannot stand together, and the argument
ab inconvenienti
that, in cases of doubt below, the remedy by certificate ought to
be available is entitled to no weight in the matter of
construction.
The result is that the certificate must be dismissed, and it
is so ordered.
MR. JUSTICE BREWER did not hear the argument, and took no part
in the decision of this case.
|163 U.S.
163 U. S.
132ast|
*
"SEC. 650. Whenever, in any civil suit or proceeding in a
circuit court held by a circuit justice and a circuit judge or a
district judge, or by a circuit judge and a district judge, there
occurs any difference of opinion between the judges as to any
matter or thing to be decided, ruled, or ordered by the court, the
opinion of the presiding justice or judge shall prevail, and be
considered the opinion of the court for the time being."
"SEC. 651. Whenever any question occurs on the trial or hearing
of any criminal proceeding before a circuit court upon which the
judges are divided in opinion, the point upon which they disagree
shall, during the same term, upon the request of either party, or
of their counsel, be stated under the direction of the judges and
certified under the seal of the court to the supreme court at their
next session; but nothing herein contained shall prevent the cause
from proceeding if in the opinion of the court further proceedings
can be had without prejudice to the merits. Imprisonment shall not
be allowed nor punishment inflicted in any case where the judges of
such court are divided in opinion upon the question touching the
said imprisonment or punishment."
"SEC. 652. When a final judgment or decree is entered in any
civil suit or proceeding before any circuit court held by a circuit
justice and a circuit judge or a district judge, or by a circuit
judge and a district judge, in the trial or hearing whereof any
question has occurred upon which the opinions of the judges were
opposed, the point upon which they so disagreed shall, during the
same term, be stated under the direction of the judges, and
certified, and such certificate shall be entered of record."
"SEC. 693. Any final judgment or decree, in any civil suit or
proceeding before a circuit court which was held at the time, by a
circuit justice and a circuit judge or a district judge, or by the
circuit judge and a district judge, wherein the said judges certify
as provided by law that their opinions were opposed upon any
question which occurred on the trial or hearing of the said suit or
proceeding may be reviewed and affirmed or reversed or modified by
the Supreme Court on writ of error or appeal, according to the
nature of the case, and subject to the provisions of law applicable
to other writs of error or appeals in regard to bail and
supersedeas."
"SEC. 697. When any question occurs on the hearing or trial of
any criminal proceeding before a circuit court upon which the
judges are divided in opinion, and the point upon which they
disagree is certified to the supreme court according to law, such
point shall be finally decided by the Supreme Court, and its
decision and order in the premises shall be remitted to such
circuit court, and be there entered of record, and shall have
effect according to the nature of the said judgment and order."
