The authority of this Court to review the action of the court
below in this case must be found in one of three classes of cases,
in which, by section 5 of the Judiciary Act of March 3, 1891, an
appeal or writ of error may be taken from a District or Circuit
Court direct to this Court. The classes of cases alluded to are as
follows: 1. cases in which the jurisdiction of the court is in
issue, in which class of cases the question of jurisdiction alone
is to be certified from the court below for decision; 2. cases
involving the construction or application of the Constitution of
the United States; and, 3. cases in which the constitutionality of
any law of the United States, or the validity or construction of
any treaty made under its authority, is drawn in question. The
Court is of opinion that the case at bar is not embraced within
either of those classes of cases.
Two indictments were found by the grand jury of Independence
County, Arkansas, against Schlierholz, appellee herein, for alleged
violations of statutes of Arkansas. One indictment charged the
taking possession unlawfully of certain timber; the other, the
unlawful marking of timber. Upon such indictments, Schlierholz was
taken into custody by the appellant John A. Hinkle, as Sheriff of
Independence County. Thereupon Schlierholz presented a petition in
habeas corpus to the judge of the District Court of the United
States for the Eastern District of Arkansas. In said petition, it
was alleged in substance that the acts complained of in the
indictments referred to were done by Schlierholz in the performance
of his duty as a special agent of the General Land Office under the
Department of the Interior of the United States. A writ of habeas
corpus was allowed, and it was ordered to be served not only on
Hinkle, the sheriff, but on the Prosecuting Attorney of the State
of Arkansas for the Third Judicial Circuit. Issue was joined by a
return filed by said prosecuting attorney. On motion, the case was
transferred to the District Court of the United States for the
Page 179 U. S. 599
Northern Division of the Eastern District of Arkansas. Hearing
having been had, the court found that Schlierholz, in the doing of
the things complained of in the indictments, acted in the
performance of his duty as a special agent of the General Land
Office of the United States, and in strict conformity with the
rules and regulations of the Secretary of the Interior, and that
his arrest and detention were illegal and void. It was adjudged
that the petitioner "be discharged from the custody of the sheriff
under the writ in the petition and response set out and go hence
without day." Thereupon the court allowed an appeal to this Court,
and in the order doing so the following recitals are found:
"And at the request of the said State of Arkansas and John A.
Hinkle, as sheriff, the following questions, among others involved
herein, are certified to the said Supreme Court of the United
States:"
"1. Whether this court has jurisdiction in the premises to
discharge the petitioner, Charles A.M. Schlierholz, from the
custody of John A. Hinkle, Sheriff of Independence County,
Arkansas, for the matters and things and under the circumstances
set out in the record in this cause."
"2. Whether the proper order of this Court under the facts
should have been to remand said petitioner to the custody of the
said Sheriff of Independence County, Arkansas, to be dealt with by
the Independence Circuit Court of the state, or to discharge him
from said custody."
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
Before we can consider the principal propositions which have
been argued at bar, we must determine whether, on this record,
jurisdiction exists to entertain this appeal.
The authority of this Court to review the action of the
court
Page 179 U. S. 600
below must be found in one of three classes of cases in which,
by section 5 of the Judiciary Act of March 3, 1891, an appeal or
writ of error may be taken from a district or circuit court direct
to this Court. The classes of cases alluded to are as follows:
1. Cases in which the jurisdiction of the court is in issue, in
which class of cases the question of jurisdiction alone is to be
certified from the court below for decision;
2. Cases involving the construction or application of the
Constitution of the United States; and,
3. Cases in which the constitutionality of any law of the United
States, or the validity or construction of any treaty made under
its authority, is drawn in question.
We are of opinion that the case at bar is not embraced within
either of the classes of cases just mentioned.
As respects the first class, it was said in
Huntington v.
Laidley (1900),
176 U. S. 676,
as follows:
"In order to maintain the appellate jurisdiction of this Court
under this clause, the record must distinctly and unequivocally
show that the court below sends up for consideration a single and
definite question of jurisdiction. This may appear in either of two
ways: by the terms of the decree appealed from and of the order
allowing the appeal, or by a separate certificate of the court
below.
Maynard v. Hecht, 151 U. S. 324;
In re Lehigh
Co., 156 U. S. 322;
Shields v.
Coleman, 157 U. S. 168;
Interior
Construction Co. v. Gibney, 160 U. S. 217;
Van Wagenen
v. Sewall, 160 U. S. 369;
Chappell v.
United States, 160 U. S. 499;
Davis v.
Geissler, 162 U. S. 290."
Now, on looking at the proceedings had prior to the judgment
rendered below, we do not find even a suggestion that an issue was
made and decided by the district court as to the jurisdiction of
that court to hear and determine the controversy presented by the
petition on habeas corpus and the return thereto. On the contrary,
the defense set forth in the return went simply to the merits,
being based upon the contention that Schlierholz, in the acts
charged in the indictment, had acted outside of his instructions
and contrary to law. Nor, if the record imported that an issue as
to jurisdiction had been made in the trial court and had been by it
decided, do the questions propounded to this Court constitute a
sufficient certification of such question
Page 179 U. S. 601
of jurisdiction. The statements in the order allowing the
appeal, setting forth the questions propounded for the decision of
this Court, whether considered by themselves or in connection with
the record, cannot in reason be treated as "a plain declaration
that the single matter which is by the record sent up to this Court
for decision is a question of jurisdiction."
Shields v.
Coleman (1895),
157 U. S. 177.
As declared in the case just cited, "no mere suggestion that the
jurisdiction of the court was in issue will answer." But in the
questions propounded by the district court there is not even an
intimation that the court, in the judgment rendered, did more than
pass upon the merits of the controversy. In effect, the questions
but imply that the court assumed that it had a discretion either to
dispose of the case on its merits or to remand the accused to the
state court and require him to resort to his remedy by writ of
error, and that the instruction of this Court was desired by the
court below as to the proper exercise of its discretion in the
premises. But the power to certify to this Court other than
jurisdictional questions is vested only in the circuit courts of
appeals.
Bardes v. Hawarden First National Bank (1899),
175 U. S. 526,
175 U. S. 528.
As respects the second and third class of cases, the record does
not lend support to the claim that any constitutional question was
presented to the court below for its determination. Full
opportunity existed in the return filed to the writ to set up any
constitutional provision which might have been deemed adequate to
defeat the application of Schlierholz for his discharge from
custody. The only suggestion, however, of a contention based upon
the Constitution of the United States is that contained in the
assignment of errors made for the purpose of this appeal. Clearly,
therefore, the record presents no constitutional question for
review by this Court, since it fails to disclose that a controversy
on such subject was called to the attention of the court below
prior to the hearing, and when it also does not appear that the
court below considered or necessarily passed upon an issue of that
character.
Chapin v. Fye (1900),
ante,
179 U. S. 127,
ante, 71;
Loeb v. Columbia Township, ante,
179 U. S. 472.
Dismissed for want of jurisdiction.
