1. At the hearing in the circuit court of an appeal from the
district court, the district judge who rendered the decision
appealed from cannot, under sec. 614 of the Revised Statutes, give
a vote, even by consent of parties, when another judge is present,
and the case cannot be brought to this Court upon a certificate of
division of opinion between him and the other judge.
2. An information for a forfeiture under the internal revenue
laws cannot be brought from the circuit court to this Court by
appeal.
This was an information, for the forfeiture of the right, title,
and interest of Severin Schulte in certain real estate on which he
carried on the business of a distiller without having given bond as
required by law, and with intent to deprive the United States of
the tax on the spirits distilled by him.
In the district court, held by Judge Bunn, Bernard Emholt and
Eliza Bergener appeared and answered as claimants of the real
estate under mortgages from Schulte. Upon the trial it was found by
special verdict that Schulte was guilty as charged in the
information, and that he held the legal title to the real estate,
subject to a mortgage to each of the claimants; judgment was given
that the mortgages constituted no lien or encumbrance against the
United States, and that all the real estate be forfeited, and the
claimants appealed to the circuit court.
In the circuit court, held by Mr. Justice Harlan and Judge Bunn,
the judgment was reversed and a certificate, signed by Mr. Justice
Harlan only, was entered of record, stating that the hearing upon
the special verdict found in the district court was, by consent of
parties, had before the circuit justice and the district judge, and
that they were divided in their opinion on the question whether,
upon the facts found in the special verdict, the United States was
entitled to judgment forfeiting the property described in the
information to the use of the United States, except subject to the
interest and claim of the claimants, as set out in their answers.
From the judgment of the circuit court the district attorney
Page 105 U. S. 415
on behalf of the United States, claimed an appeal to this Court,
which was allowed.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
This Court has no jurisdiction of the question certified. The
office and object of a certificate of division of opinion are to
bring to this Court for determination a question of law upon which
the opinions of two judges, competent to take part in the judgment
of the circuit court, are opposed to each other. By the provisions
of sec. 4 of the Act of Sept. 24, 1789, c. 20, and of sec. 5 of the
Act of April 29, 1802, c. 31, reenacted in the Revised Statutes,
sec. 614, upon the hearing in the circuit court of an appeal from a
judgment of the district court, the district judge who rendered the
decision appealed from, although he may, for the information of the
circuit court, assign his reasons for that decision, is prohibited
from voting or taking part in the judgment of the circuit court,
and that judgment is to be entered according to the opinion of the
judge who is not so disqualified. The provision of sec. 2 of the
Act of March 2, 1867, c. 185, also incorporated in the same section
of the Revised Statutes, which, in order to prevent failure or
delay of justice, permits such a case, by consent of parties, to be
heard and disposed of by the district judge when alone holding the
circuit court, has no application when another judge is present.
And the provisions of sec. 6 of the Act of April 29, 1802, c. 31,
and of sec. 1 of the Act of June 1, 1872, c. 255, embodied in secs.
650, 652, 693, 697, of the Revised Statutes, do not enlarge the
authority of the district judge in this respect. It necessarily
follows that the case cannot be brought to this Court upon a
certificate of division of opinion between the judge who is
qualified and the judge who is disqualified to take part in the
judgment.
United States v. Lancaster, 5 Wheat. 434;
Nelson v.
Carland, 1 How. 265.
The case cannot be treated as before this Court on the appeal
from the circuit court without regard to the certificate of
division, because it is on the common law side of that court.
Page 105 U. S. 416
If it is to be considered as a civil action, the proper mode of
bringing it up is by writ of error, and not by appeal.
Bevins v.
Ramsey, 11 How. 185;
Jones v.
La Vallette, 5 Wall. 579. If, according to
Clifton v. United
States, 4 How. 242,
45 U. S. 250,
it should be treated as in the nature of a criminal proceeding, it
is hard to see how it could be brought to this Court at all except
upon a certificate of division of opinion.
Ex parte
Gordon, 1 Black 503.
Neither the consent of parties nor the allowance of the appeal
in the court appealed from can enable this Court to review the
judgment of that court in any other form of proceeding than the law
prescribes.
Kelsey v.
Forsyth, 21 How. 85;
Callan v.
May, 2 Black 541.
This Court having no jurisdiction of the case, the appeal must
be dismissed, and the case
Remanded to the circuit court.
