Only distinct points of law that can be distinctly answered
without regard to other issues can be certified to this Court on
division of opinion: the whole case cannot be certified, even when
its decision turns upon matters of law only.
Appellate jurisdiction implies the determination of the case by
an inferior court, and the transfer of the case to the appellate
court without such determination amounts to giving the appellate
court original jurisdiction.
Page 215 U. S. 217
Congress cannot extend the original jurisdiction of this Court
beyond that prescribed by the Constitution, and an act providing
for certifying questions of law will not be construed as permitting
certification of the entire case before any judgment has been
rendered below.
Under § 1 of the Expediting Act of February 11, 1903, c.
544, 32 Stat. 823, the case, although turning only on a point of
law, cannot be certified to this Court in absence of any judgment,
opinion, decision, or order determinative of the case below.
This was a bill in equity filed by the Baltimore & Ohio
Railroad Company in the circuit court of the United States for the
District of Maryland against the Interstate Commerce Commission,
July 20, 1908, which prayed for a preliminary injunction and a
final decree enjoining, annulling, and suspending a certain order
of the Commission served June 24, 1908, in a proceeding before the
Commission, entitled, "Rail & River Coal Co. v. Baltimore &
Ohio Railroad Company."
On July 27, 1908, the Attorney General, in compliance with
§ 5 of the Act to Regulate Commerce, as amended by the Act of
June 29, 1906, filed in the Court the certificate of general public
importance under the Expedition Act of February 11, 1903. In
accordance with the provisions of the Act of February 11, 1903, the
two circuit judges, by order filed August 26, 1908, designated the
Honorable Thomas J. Morris, District Judge for the District of
Maryland, to sit with them on the hearing and disposition of the
case.
The application for the preliminary injunction was set for
hearing September 22, 1908. Defendant's answer was filed September
19, 1908. By order entered September 23, 1908, the application for
the preliminary injunction was denied.
Replication was filed and testimony taken, and, there being no
substantial dispute as to the facts, Mr. Arthur Hale, complainant's
general superintendent of transportation and also chairman of the
car efficiency committee of the American Railway Association, was
able to testify as to all matters
Page 215 U. S. 218
that counsel deemed necessary to bring to the court's attention,
and was the only witness.
December 14, 1908, the cause came on for final hearing, and was
argued before the two circuit judges and the district judge
designated by them. No final decree or judgment was entered, but
the presiding judge entered the following order:
"This cause came on this day to be further heard, and was argued
by counsel, and the court, having fully considered the bill,
answer, deposition, and other papers filed herein, the judges
sitting finding themselves divided in opinion as to the decree that
should be entered herein."
"It is now ordered, that, in accordance with the act of Congress
applicable hereto, that this case be certified for review to the
Supreme Court of the United States."
"December 14, 1908."
The cause was docketed in this Court and the transcript of
record filed January 25, 1909, as "on a certificate from the
circuit court of the United States for the District of
Maryland."
The Act of Congress of February 11, 1903, 32 Stat. 823, c. 544,
contains two sections, as follows:
"(1) That in any suit in equity pending or hereafter brought in
any circuit court of the United States under the act entitled 'An
Act to Protect Trade and Commerce against Unlawful Restraints and
Monopolies,' approved July second, eighteen hundred and ninety, 'An
Act to Regulate Commerce,' approved February fourth, eighteen
hundred and eighty-seven, or any other acts having a like purpose
that hereafter may be enacted, wherein the United States is
complainant, the Attorney General may file with the clerk of such
court a certificate that, in his opinion, the case is of general
public importance, a copy of which shall be immediately furnished
by such clerk to each of the circuit judges of the circuit in which
the case is pending. Thereupon such case shall be given precedence
over others, and in every way expedited,
Page 215 U. S. 219
and be assigned for hearing at the earliest practicable day,
before not less than three of the circuit judges of said circuit,
if there be three or more, and, if there be not more than two
circuit judges, then before them and such district judge as they
may select. In the event the judges sitting in such case shall be
divided in opinion, the case shall be certified to the Supreme
Court for review in like manner as if taken there by appeal as
hereinafter provided."
"SEC. 2. That in every suit in equity pending or hereafter
brought in any circuit court of the United States under any of said
acts, wherein the United States is complainant, including cases
submitted but not yet decided, an appeal from the final decree of
the circuit court will lie only to the Supreme Court, and must be
taken within sixty days from the entry thereof: Provided, That in
any case where an appeal may have been taken from the final decree
of a circuit court to the circuit court of appeals before this act
takes effect, the case shall proceed to a final decree therein, and
an appeal may be taken from such decree to the Supreme Court in the
manner now provided by law."
Section 5 of the Hepburn Act, so called, of June 29, 1906, 34
Stat. 584, 592, c. 359, provides:
"The venue of suits brought in any of the circuit courts of the
United States against the commission to enjoin, set aside, annul,
or suspend any order or requirement of the commission, shall be in
the district where the carrier against whom such order or
requirement may have been made has its principal operating office,
and may be brought at any time after such order is
promulgated."
"
* * * *"
"The provisions of 'An Act to Expedite the Hearing and
Determination of Suits in Equity,' and so forth, approved February
eleventh, nineteen hundred and three, shall be, and are hereby,
made applicable to all such suits, including the hearing on an
application for a preliminary injunction, and are also made
applicable to any proceeding in equity to
Page 215 U. S. 220
enforce any order or requirement of the commission, or any of
the provisions of the Act to Regulate Commerce, approved February
fourth, eighteen hundred and eighty-seven, and all acts amendatory
thereof or supplemental thereto. It shall be the duty of the
Attorney General in every such case to file the certificate
provided for in said expediting act of February eleventh, nineteen
hundred and three, as necessary to the application of the
provisions thereof, and upon appeal, as therein authorized, to the
Supreme Court of the United States, the case shall have in such
court priority in hearing and determination over all other causes
except criminal causes. . . . An appeal may be taken from any
interlocutory order or decree granting or continuing an injunction
in any suit, but shall lie only to the Supreme Court of the United
States:
Provided further, That the appeal must be taken
within thirty days from the entry of such order or decree, and it
shall take precedence in the appellate court over all other causes,
except causes of like character and criminal causes."
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
By the Judiciary Act of March 3, 1891, a review by certificate
is limited to the certificate or its equivalent by the circuit
courts, made after final judgment, of the question, when raised, of
their jurisdiction as courts of the United States,
Page 215 U. S. 221
and to the certificate by the circuit courts of appeal of
questions of law in relating to which the advice of this Court is
sought as therein provided, which certificates are governed by the
same rules as were formerly applied to certificates of division.
United States v. Rider, 168 U. S. 132;
The Paquete Habana, 175 U. S. 677,
175 U. S. 684;
Chicago, Burlington & Quincy Railway Company v.
Williams, 205 U. S. 444. And
it has been established by repeated decisions that questions
certified to this Court upon a division of opinion must be distinct
points of law, clearly stated, so that they can be distinctly
answered without regard to other issues of law or of fact, and not
questions of fact or of mixed law and fact, involving inferences of
fact from particular facts stated in the certificates, nor yet the
whole case, even if divided into several points.
Jewell v.
Knight, 123 U. S. 426,
123 U. S.
433.
And finally it has been settled that the whole case, even when
its decision turns upon matter of law only, cannot be sent here by
certificate of division.
In
White v Turk,
12 Pet. 238, it was said:
"The certificate of the judges, in this case, leaves no doubt
that the whole cause was submitted to the circuit court by the
motion to set aside the judgment on the bond. And, had the court
agreed in opinion and rendered a judgment upon the points
submitted, it would have been conclusive of the whole matter in
controversy between the parties. This certificate therefore brings
the whole cause before this Court, and if we were to decide the
questions presented, it would in effect be the exercise of
original, rather than appellate, jurisdiction."
This practice was declared irregular by Chief Justice Taney in
Webster v.
Cooper, 10 How. 54, and the Chief Justice added
that it
"would, if sanctioned, convert this Court into one of original
jurisdiction in questions of law, instead of being, as the
Constitution intended it to be, an appellate court to revise the
decisions of inferior tribunals."
So Mr. Justice Miller, in
United States v. Perrin,
131 U. S. 55,
131 U. S. 58,
said:
"But it never was designed that, because a case is a
Page 215 U. S. 222
troublesome one, or is a new one, and because the judges trying
the case may not be perfectly satisfied as regards all the points
raised in the course of the trial, the whole matter shall be
referred to this Court for its decision in advance of a regular
trial, or that, in any event, the whole case shall be thus brought
before this Court. Such a system converts the Supreme Court into a
nisi prius trial court; whereas, even in cases which come
here for review in the ordinary course of judicial proceeding, we
are always and only an appellate court, except in the limited class
of cases where the Court has original jurisdiction."
Without discussing the evolution of the use of certificates,
reference to the legislation given below may be profitable.
*
Page 215 U. S. 223
In the present case, no final judgment or decree or order
determinative of the merits was rendered, but the court ordered
"that this case be certified for review to the Supreme Court of the
United States," and that
"a transcript of the record and proceedings of the cause
aforesaid, together with all things thereunto relating, be
transmitted to the said Supreme Court of the United States, and the
same is transmitted accordingly."
The Act of Congress of February 11, 1903, provided in its first
section that, on the certificate of the Attorney General, the case
should be assigned for hearing before not less than
Page 215 U. S. 224
three judges, and that,
"in the event the judges sitting in such case shall be divided
in opinion, the case shall be certified to the Supreme Court for
review in like manner as if taken there by appeal, as hereinafter
provided."
The order of the circuit court pursues the language of this
provision, and attempts to send up the whole case to be determined
by this Court. This invokes the exercise of original jurisdiction,
and cannot be sustained.
In a note to
United States v.
Ferreira, 13 How. 40,
54 U. S. 52,
which was inserted by order of the Court, the Chief Justice states
the substance of the case of the
United States v. Todd,
which was decided in February, 1794, but not printed, as there was
at that time no official reporter. This note thus concludes:
"In the early days of the government, the right of Congress to
give original jurisdiction to the Supreme Court in cases not
enumerated in the Constitution was maintained by many jurists, and
seems to have been entertained by the learned judges who decided
Todd's case. But discussion and more mature examination
has settled the question otherwise, and it has long been the
established doctrine, and we believe now assented to by all who
have examined the subject, that the original jurisdiction of this
Court is confined to the cases specified in the Constitution, and
that Congress cannot enlarge it. In all other cases, its power must
be appellate."
Such is the settled rule, and it is inadmissible to suppose that
it was the intention of Congress to run counter to it.
Ordinarily, in the federal courts, in the absence of express
statutory authority, no appeal can be taken or writ of error
brought except from a final decree or to a final judgment.
McLish v. Roff, 141 U. S. 661,
141 U. S. 665;
Forgay v.
Conrad, 6 How. 201,
47 U. S. 205.
There is no final judgment or decree in this case, nor any judicial
determination from which an appeal would lie.
The
Alicia, 7 Wall. 571, is in point. In that case, it
appeared that, on the ninth day of January, 1863, a decree of
Page 215 U. S. 225
condemnation had been entered in the district court against the
Alicia and her cargo for violation of the blockade. From
this decree an appeal was allowed and taken to the circuit court,
and on the eighteenth of May, 1867, an order was made in that court
on the application of the parties in interest -- there being at
this time, in the circuit court, no order, judgment, or decree in
the case -- for the transfer of the cause to this Court under the
thirteenth section of the Act of June 30, 1864, which enacted that
prize causes depending in the circuit court might be so
transferred. This Court held that the cause was removed to the
circuit court by the appeal from the decree of the district court,
and that that decree was vacated by the appeal, and that the
circuit court acquired full jurisdiction of the cause, and was
fully authorized to proceed to final hearing and decree. And Chief
Justice Chase said (p.
74 U. S.
573):
"Nor can it be doubted that, under the Constitution, this Court
can exercise, in prize causes, appellate jurisdiction only. An
appellate jurisdiction necessarily implies some judicial
determination, some judgment, decree, or order of an inferior
tribunal, from which an appeal has been taken. But in this case,
there had been no such order, judgment, or decree in the circuit
court, and there was no subsisting decree in the district court,
from which an appeal could be taken. We are obliged to conclude
that, in the provision for transfer, an attempt was inadvertently
made to give to this Court a jurisdiction withheld by the
Constitution, and, consequently, that the order of transfer was
without effect. The cause is still depending in the circuit
court."
The result is that the order must be set aside and the case
remanded to the circuit court with directions to proceed in
conformity with law.
Ordered accordingly.
1. Section 6 of the "Act to Amend the Judicial System of the
United States," April 29, 1802, 2 Stat. 159, c. 31, provided:
"That whenever any question shall occur before a circuit court,
upon which the opinions of the judges shall be opposed, the point
upon which the disagreement shall happen shall, during the same
term, upon the request of either party, or 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 to be held
thereafter, and shall, by the said court, be finally decided. And
the decision of the Supreme Court, and their order in the premises,
shall be remitted to the circuit court, and be there entered of
record, and shall have effect according to the nature of the said
judgment and order:
Provided, That nothing herein
contained shall prevent the cause from proceeding if, in the
opinion of the court, farther proceedings can be had without
prejudice to the merits. . . ."
This act was superseded by that of June 1, 1872, 17 Stat.196, c.
255, which provided:
"That whenever, in any suit or proceeding in a circuit court of
the United States, being held by a Justice of the Supreme Court and
the circuit judge or a district judge, or by the circuit judge and
a district judge, there shall occur 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
the presiding judge shall prevail, and be considered the opinion of
the court for the time being; but when a final judgment, decree, or
order in such suit or proceeding shall be entered, if said judges
shall certify, as it shall be their duty to do if such be the fact,
that they differed in opinion as to any question which, under the
act of Congress of April twenty-ninth, eighteen hundred and two,
might have been reviewed by the Supreme Court on certificate of
difference of opinion, then either party may remove said final
judgment, decree, or order to 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."
That was carried forward in 1874, by §§ 650, 652, 654,
693, and 697 of the Revised Statutes. Section 6 of the Judiciary
Act of March 3, 1891, 26 Stat. 826, c. 517, provided:
"SEC. 6. . . . Excepting that, in every such subject within its
appellate jurisdiction, the circuit court of appeals at any time
may certify to the Supreme Court of the United States any questions
or propositions of law concerning which it desires the instruction
of that court for its proper decision."
"And thereupon the Supreme Court may either give its instruction
on the questions and propositions certified to it, which shall be
binding upon the circuit courts of appeals in such case, or it may
require that the whole record and cause may be sent up to it for
its consideration, and thereupon shall decide the whole matter in
controversy in the same manner as if it had been brought there for
review by writ of error or appeal."
"And excepting also that, in any such case as is hereinbefore
made final in the circuit court of appeals, it shall be competent
for the Supreme Court to require, by certiorari or otherwise, any
such case to be certified to the Supreme Court for its review and
determination, with the same power and authority in the case as if
it had been carried by appeal or writ of error to the Supreme
Court."
