BALTIMORE & OHIO RAILROAD COMPANY v. INTERSTATE COMMERCE COMMISSION.

By the judiciary act of March 3, 1891 [26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488], 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, 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, 41 L. ed. 101, 16 Sup. Ct. Rep. 983; The Habana, 175 U. S. 677, 684, 44 L. ed. 320, 322, 20 Sup. Ct. Rep. 290; Chicago, B. & Q. R. Co. v. Williams, 205 U. S. 444, 51 L. ed. 875, 27 Sup. Ct. Rep. 559. 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, 433, 31 L. ed. 190, 192, 8 Sup. Ct. Rep. 193.

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, 9 L. ed. 1069, 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, 13 L. ed. 325, 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, 58, 33 L. ed. 88, 89, 9 Sup. Ct. Rep. 681, 682, said:

'But it never was designed that, because a case is a 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.1

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 1st section that, on the certificate of the Attorney General, the case should be assigned for hearing before not less than 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. on page 52, 14 L. ed. on page 47, note, 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, 665, 35 L. ed. 893, 894, 12 Sup. Ct. Rep. 118; Forgay v. Conrad, 6 How. 201, 205, 12 L. ed. 404, 406. 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, 19 L. ed. 84, is in point. In that case it appeared that, on the 9th day of January, 1863, a decree of 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 18th 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 13th section of the act of June 30, 1864 [13 Stat. at L. 311, chap. 174], 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: '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.