By the distribution of power made by the Circuit Court of
Appeals Act of 1891, and now embodied in the Judicial Code of 1911,
this Court has no jurisdiction to review a judgment or decree of
the circuit court of appeals otherwise than by proceedings
addressed directly to that court in a cause which is susceptible of
being renewed.
That which can only be done by direct action cannot be done by
indirection.
In a case in which on the original pleadings the judgment of the
circuit court of appeals would not have been reviewable by this
Court, plaintiff recovered in the circuit court and on appeal the
circuit court of appeals reversed and remanded for new trial, with
an opinion adverse to all of plaintiff's contentions; plaintiff in
the Circuit Court amended by adding an allegation denying due
process of law, and elected not to plead further after demurrer
sustained and took a direct writ of error to this Court basing it
on the constitutional question, and claiming that in this Court all
other questions could also be passed on.
Held that this Court will not in this indirect manner
attempt to review a judgment of the circuit court of appeals which
it otherwise has not jurisdiction to review.
This Court is scrupulous to keep within its jurisdiction, and if
the record does not show that the circuit court of appeals has
already passed on questions in the case, it will order the
deficiency supplied by directing the court below to certify all the
papers in the case.
The facts, which involve the jurisdiction of this Court directly
to review the judgment of the circuit court, are stated in the
opinion.
Page 228 U. S. 520
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
Plaintiff in error was plaintiff below, and brought this action
to recover a sum levied as a legacy tax under §§ 29 and 30 of the
War Revenue Act of June 13, 1898, c. 448, 30 Stat. 464, 465, as
amended by the Act of March 2, 1901, c. 806, §§ 10, 11, 31 Stat.
946-948. The grounds for recovery stated in the petition in effect
presented only questions of statutory construction. The trial
court, being of opinion that a recovery was justified upon one of
the stated grounds, sustained a demurrer to the answer, and, the
defendants not desiring to plead further, judgment was entered for
the plaintiff. The case was then taken to the circuit court of
appeals. That court, in a full and careful opinion, reviewed the
grounds for recovery relied upon in the petition, decided that all
the grounds of the claim were without merit, and held there was no
right to the relief prayed. In consequence, the judgment of the
court below was reversed and the case was remanded with directions
to overrule the demurrer and for further proceedings consistent
with the views expressed in the opinion of the court. 164 F. 795. A
petition for rehearing was overruled. 168 F. 617.
On the receipt of the mandate, the trial court allowed the
plaintiff to file an amended petition, wherein, in addition to
repeating the contentions urged in the original petition, it was
alleged that the "clear value" of the life estate in question had
been fixed and determined by a method so arbitrary as to amount to
a deprivation of property without due process of law. A demurrer to
this amended petition was sustained, and, the plaintiff
electing
Page 228 U. S. 521
not to plead further, judgment was entered in favor of the
defendants.
The case was then brought directly to this Court upon the theory
that a constitutional question was involved. The assignments of
error invoked a reexamination of all the issues, including those
which had been adversely passed on by the circuit court of appeals.
On these assignments, the case was argued at bar and taken under
advisement on a record which contained only the proceedings had in
the trial court subsequent to the filing of the mandate of the
circuit court of appeals. While in that situation, the published
report of the opinion of the circuit court of appeals came under
our observation. Mindful of the proper consideration due to the
circuit court of appeals, and of our duty at all times to be
scrupulous to keep within our jurisdiction, for the purpose of
enabling us to apply the doctrine announced in the case of
Aspen Mining & Smelting Co. v. Billings, 150 U. S.
31, in which case, as in this, the record did not
disclose that the cause had been passed upon by the circuit court
of appeals, although there were on the files of this Court
certiorari proceedings so showing, to which resort was had, we
directed that the court below supply the deficiency, if any there
was, in the record by certifying all the proceedings had in the
case. At once, by stipulation of counsel, an additional transcript
was filed, stating the proceedings on the first trial, the taking
of the appeal to the circuit court of appeals, and the action of
that court, and in the light thus afforded we come first to
consider our jurisdiction over the controversy.
There can be no doubt that, on the record upon which the circuit
court of appeals acted, the judgment of that court, if it had been
final in form, would have been beyond our competency to review.
Spreckels Sugar Refining Co. v. McClain, 192 U.
S. 397. There can equally be no doubt that, if we have
power to pass upon the case on this record,
Page 228 U. S. 522
our jurisdiction embraces not only the right to decide the
alleged constitutional question raised after the mandate of the
circuit court of appeals had been filed in the trial court, but
also all other questions arising on the record, including those
passed upon by the circuit court of appeals. Indeed, it is
unnecessary to cite the many authorities sustaining this view,
since the insistence of the plaintiff in error is that every
question is open, and in effect the argument seeks a review and
reversal of the rulings previously made by the circuit court of
appeals. But, by the distribution of power made by the Act of 1891
and embodied in the Judicial Code, no jurisdiction is conferred
upon this Court to review a judgment or decree of the circuit court
of appeals otherwise than by proceedings addressed directly to that
court in a cause which is susceptible of being reviewed. Under
these conditions, the absence of jurisdiction to exercise the
authority which we are now asked to exert would seem to be clear
unless the principle be recognized that we have a right to do by
indirection that which the statute gives us power only to do by
direct action. It is, however, said the statute gives the right to
come directly to this Court where a constitutional question is
involved, and as such question was raised below, albeit after the
cause was pending in the trial court for the purpose of giving
effect to the mandate of the circuit court of appeals, the right to
direct review exists, and cannot be denied without refusing to
accord the relief plainly afforded by the statute. At best, this
proposition but involves the assertion that, by virtue of the power
conferred to take a direct appeal from one court, authority is
given to indirectly review the decision of another and higher
court, although the statute restricts the right to review such
decision to a direct proceeding. But resort to original reasoning
to establish the unsoundness of the proposition relied on is
scarcely necessary, as that result will be made plainly manifest by
applying
Page 228 U. S. 523
principles established in the following cases:
Aspen Mining
& Smelting Co. v. Billings, 150 U. S.
31;
Brown v. Alton Water Co., 222 U.
S. 325, and
Metropolitan Water Co. v. Kaw Valley
Drainage District, 223 U. S. 519.
Nor, as in effect held in the
Metropolitan case, can the
case of
Globe Newspaper Co. v. Walker, 210 U.
S. 356, be considered as announcing a doctrine in
conflict with the rulings in the
Aspen and
Alton
cases. And, aside from a distinction suggested in the
Metropolitan case between the
Aspen and
Alton cases and the
Globe case, it must follow
that, if the ruling in the
Globe case was in any wise in
conflict with the doctrine announced and approved in the
Metropolitan case, to the extent of such conflict, it was
necessarily qualified by that decision.
It is insisted, however, that in both the
Aspen and the
Alton cases, the questions which it was sought to review
by direct appeal after the decision of the circuit court of appeals
had been, either expressly or by necessary implication, passed upon
by that court and therefore were expressly foreclosed, while here
such is not the case, since the constitutional question was not in
the case when it went to the circuit court of appeals, but only
made its appearance by an amendment to the pleadings after the
decision of that court. Granting the premise upon which the
argument rests, the deduction is unfounded. The ruling in both the
Aspen and
Alton cases rested upon plain ground of
the duty of this Court not to exert a power not conferred, of the
impossibility of proceeding upon the theory that error could be
said to have been committed by the trial court because it had
applied the decision of the circuit court of appeals, or of
maintaining the right to the direct appeal which was relied upon in
those cases consistently with the power of the circuit court of
appeals not only to decide questions within its jurisdiction, but
moreover to determine whether, when in a particular case it had
decided such questions and remanded the case
Page 228 U. S. 524
in which they had been decided to a trial court for further
proceedings, that court had in such further proceedings given due
effect to its decision. Indeed, these considerations were expounded
in the
Metropolitan case, and it was there pointed out
that the attempt to make a distinction upon the mere form of the
mandate was without merit (p.
223 U. S.
523). Looked at
arguendo, however, as a matter
of first impression, the source of the error which the proposition
here relied upon involves is not difficult to perceive. It consists
in pursuing a mistaken avenue of approach to this Court -- that is,
of coming directly from a trial court in a case where, by reason of
the cause's having been previously decided by the circuit court of
appeals, the way to that court should have been pursued even if it
was proposed to ultimately bring the case here. The error comes
from attempting, after the case has been taken to the circuit court
of appeals and been there decided, to resort to proceedings for
review which, under the statute, are applicable only in case no
such action by the circuit court of appeals had been taken. A
consideration of the confusion which inevitably would result if the
doctrine of the
Metropolitan, Alton, and
Aspen
cases were not applied of the necessity which would arise for
denying powers conferred upon the circuit court of appeals by the
statute, and of calling into play a power of review by this Court
not given, clearly demonstrates the error of the right to direct
appeal here insisted upon. And the correctness of the rule
announced in the
Aspen case, and which was reiterated in
the
Alton and
Metropolitan cases, which we again
now apply, is shown by the complete accordance between all of the
provisions of the statute which will be brought about by its
application.
Dismissed for want of jurisdiction.
MR. JUSTICE PITNEY took no part in the decision of this
case.