This case coming on to be heard before the circuit court of
appeals, consisting of the circuit judge and two district judges,
one of the judges was found to be disqualified to sit in it, and
another was unwilling to sit, whereupon the court certified to this
Court questions and propositions of law concerning which it desired
the instruction of this Court, and directed the clerk to transmit
with the certificate twenty copies of the printed record in the
cause.
Held:
(1) That the certificate was irregular, as a quorum of the court
did not sit in the case.
(2) That it did not comply with Rule 37 of this Court, inasmuch
as it did not contain a proper statement of the facts on which the
questions or propositions of law arose.
(3) That the Act of March 3, 1891, does not contemplate the
certification of questions or propositions of law to be answered in
view of the entire record in a cause, although this Court may order
an entire record to be brought up in order to decide, as if the
case had been brought up by writ of error or appeal.
The case is stated in the opinion.
Page 149 U. S. 260
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This is a certificate from the United States Circuit Court of
Appeals for the Seventh Circuit. It appears therefrom that the case
came on to be heard before the circuit judge and two district
judges holding that court, on January 13, 1892, the circuit justice
not being in attendance, or able at that time to attend; that one
of said judges was unwilling, and another disqualified, to sit upon
the final hearing and determination of the appeal, and that, it
appearing to the court that the appeal involved questions of law of
great importance which should be certified to the Supreme Court of
the United States, it was thereupon ordered that certain questions
and propositions of law be, and the same were thereby, certified to
this Court as questions or propositions concerning which the
circuit court of appeals desired the instruction of this Court for
their proper decision. After stating the questions, the certificate
concluded with a direction to the clerk to transmit to the clerk of
the Supreme Court of the United States, in connection with the
certificate, twenty copies of the printed record in the cause, and
it is apparent that reference to that record is necessary in order
to the correct determination of the questions. On December 12,
1892, a motion was made in this Court that the transcript of the
record sent up by the circuit court of appeals be received, and
that the whole record and the cause be retained in this Court for
its consideration. On December 19, this motion was denied and it
was further ordered that
"counsel be allowed to submit briefs on the questions whether
the certificate in this cause is valid, and if so whether it is
sufficient under the act creating the circuit court of appeals, to
be proceeded upon by this Court."
No suggestions have been made or briefs submitted by
counsel.
We are of opinion that a certificate of questions or
propositions of law concerning which a circuit court of appeals
Page 149 U. S. 261
desires the instruction of this Court for their proper decision
is irregular when a quorum of its members does not sit in the case,
United States v. Emholt, 105 U. S. 414, and
that this certificate does not comply with Rule 37 of this Court
inasmuch as it does not contain a proper statement of the facts on
which the questions or propositions of law arise. While we have the
power to require the whole record and cause to be sent up to us for
consideration and decision, the sixth section of the Judiciary Act
of March 3, 1891, does not contemplate that questions or
propositions of law shall be propounded, and the entire record
thereupon transmitted for us to answer such questions or
propositions in view thereof. It is for us, when questions or
propositions are certified, accompanied by a proper statement of
the facts on which they arise, to determine whether we will answer
them as propounded or direct the whole record to be placed before
us in order to decide the matter in controversy in the same manner
as if the case had been brought up by writ of error or appeal.
We must decline, therefore, to answer the questions contained in
this certificate, and order the case to be
Dismissed.
