An assignment of errors cannot be availed of to import questions
into a cause which the record does not show were raised in the
court below and rulings asked thereon, so as to give jurisdiction
to this Court under the fifth section of the Act of March 3, 1891,
c. 017, 26 Stat. 826.
If the jurisdiction of a circuit court is questioned in order
that this Court take jurisdiction, it is necessary that there
should be a certificate of such question to this Court.
The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
John Ansbro was indicted for the crime of dumping injurious
deposits within the harbor and adjacent waters of New York City in
violation of the act of Congress of June 29, 1888, 25 Stat. 209, c.
496, was tried before Judge Benedict and a jury in the Circuit
Court of the United States for the Southern District of New York,
convicted, and sentenced, December 20, 1894, to six months'
imprisonment. There were six counts in the indictment against him,
three of which were waived by the district attorney. He was
acquitted upon two and convicted upon the second count alone. The
act in question is entitled
"An act to prevent obstructive and injurious deposits within the
harbor and adjacent waters of New York City, by dumping or
otherwise, and to punish and prevent
Page 159 U. S. 696
such offenses,"
and has just been referred to in the case of
The Bayonne,
ante, 159 U. S. 687.
By its first section, the discharge or deposit of refuse, dirt,
ashes, mud, and other specified matter, in the harbor of New York
City or adjacent waters within the limits prescribed by the
supervisor of the harbor is forbidden, every such act made a
misdemeanor, and every person engaged in, or who shall aid, abet,
authorize, or instigate a violation of the section, subjected to a
punishment therein prescribed. Section 2 provides that every master
and engineer on board of any boat or vessel who shall knowingly
engage in towing any scow, boat, or vessel loaded with such
prohibited matter to any point or place of deposit or discharge in
the waters of the harbor of New York, or in its adjacent or
tributary waters, or in those of Long Island Sound, or to any point
or place elsewhere than within the limits defined by the supervisor
of the harbor, shall be deemed guilty of a violation of the act and
punished as provided. Section 3, under which Ansbro was convicted,
is as follows:
"That in all cases of receiving on board of any scows or boats
such forbidden matter or substance as herein described, it shall be
the duty of the owner or master, or person acting in such capacity
on board of such scows or boats, before proceeding to take or tow
the same to the place of deposit, to apply for and obtain from the
supervisor of the harbor appointed hereunder a permit defining the
precise limits within which the discharge of such scows or boats
may be made, and any deviation from such dumping or discharging
place specified in such permit shall be a misdemeanor within the
meaning of this act, and the master and engineer, or person or
persons acting in such capacity on board of any towboat towing such
scows or boats shall be equally guilty of such offense with the
master or person acting in the capacity of the master of the scow,
and be liable to equal punishment."
The punishment prescribed by sections 1 and 2 of the act
consists of fines of not less than $250 or more than $500, or
imprisonment not less than thirty days or more than one year, or
both.
Page 159 U. S. 697
Ansbro sued out a writ of error from this Court, and we are met
on the threshold of the case with the question whether we can take
jurisdiction. Under s five of the Judiciary Act of March 3, 1891,
appeals or writs of error may be taken from the district courts or
from the existing circuit courts directly to this Court in any case
in which the jurisdiction of the court is in issue and the question
of jurisdiction is certified from the court below for decision, in
cases of conviction of a capital or otherwise infamous crime, in
any case that involves the construction or application of the
Constitution of the United States, and in any case in which the
constitutionality of any law of the United States is drawn in
question.
The offense for which Ansbro was indicted is not punishable by
imprisonment for a term of over one year, or at hard labor, and
persons convicted thereof cannot be sentenced to imprisonment in a
penitentiary. Rev.Stat. ยงยง 5541, 5542. Ansbro was not convicted,
therefore, of an infamous crime.
If the jurisdiction of the circuit court was in issue, no
certificate of such question of jurisdiction to this Court for
decision appears in the record, and without such certificate, the
case is not properly here on that ground.
The jurisdiction of this Court must be maintained, then, if at
all, on the ground that this is a case "that involves the
construction or application of the Constitution of the United
States," or "in which the constitutionality of any law of the
United States is drawn in question." But we cannot find that any
constitutional question was raised at the trial. Motions to quash,
to instruct the jury to find for the defendant, for a new trial,
and in arrest of judgment were made, but in neither of them, so far
as appears, nor by any exception to rulings on the admission or
exclusion of evidence, nor to instructions given or the refusal of
instructions asked, was any suggestion made that defendant was
being denied any constitutional right or that the law under which
he was indicted was unconstitutional. The first time that anything
appears upon that subject is in the assignment of errors, filed
February 13, 1895.
A case may be said to involve the construction or application of
the Constitution of the United States when a title, right,
Page 159 U. S. 698
privilege, or immunity is claimed under that instrument, but a
definite issue in respect of the possession of the right must be
distinctly deducible from the record before the judgment of the
court below can be revised on the ground of error in the disposal
of such a claim by its decision. And it is only when the
constitutionality of a law of the United States is drawn in
question not incidentally, but necessarily and directly, that our
jurisdiction can be invoked for that reason.
Borgmeyer v.
Idler, 159 U. S. 408;
Carey v. Railway Company, 150 U.
S. 170;
In re Lennon, 150
U. S. 395;
Railroad Company v. Amato,
144 U. S. 465,
144 U. S. 472;
Sayward v. Denny, 158 U. S. 180. An
assignment of errors cannot be availed of to import questions into
a cause which the record does not show were raised in the court
below, and rulings asked thereon, so as to give jurisdiction to
this Court under the fifth section of the Act of March 3, 1891.
Writ of error dismissed.