1. In a case where the judges of the circuit court have divided
in opinion upon several questions, one of them being whether the
court has jurisdiction, the question of jurisdiction must be
determined before any opinion can be expressed on the others.
2. If the judges of this Court as well as the court below are
equally divided on the question of jurisdiction, the case will be
remitted for such further action as may be required by law and the
rules of court.
3. Where the record of an equity case goes down in this
condition, it is the established rule to dismiss the bill and leave
the plaintiff to his remedy by appeal.
4. Whether the evidence is sufficient to prove an averment in
the pleadings is a question of fact, and cannot, therefore, be
brought into this Court upon a certificate of division.
Both these cases came up on certificates of the judges of the
circuit court that they were divided in opinion on certain points
raised at the trial.
The questions on which the judges divided in the court below are
mentioned in the opinion of MR. JUSTICE NELSON. The arguments of
counsel here were mainly on the merits of the
Page 66 U. S. 583
cause, but this Court being also divided, nothing was determined
except the points of practice noted at the head of this report.
MR. JUSTICE NELSON.
These were suits in equity, in which the bills were filed in
October, 1856, to obtain a decree for an injunction perpetually
restraining the defendant from erecting a bridge across the Hudson
River at Albany, authorized by an Act of the Legislature of the
State of New York passed on the 9th day of April, 1856. The
defendant answered both bills, to which general replications were
filed and proofs taken, and the causes brought on for hearing, and
heard together, upon pleadings and proofs.
And upon the hearing of each of the said causes, the following
questions occurred, to-wit:
First. Whether or not the court, under the Constitution and laws
of the United States, has the power perpetually to restrain the
erection of the bridge across the Hudson River at Albany proposed
to be erected by the defendants in the manner provided for or
authorized by the acts of the Legislature of the State of New York
mentioned in the pleadings and proofs herein in case the plaintiff,
being the owner of vessels holding coasting licenses, shows, to the
satisfaction of the court, that such bridge, if erected, will
materially obstruct, delay, or hinder such vessels in the
navigation of said river, while engaged in commerce between said
State of New York and other states.
Second. Whether or not the evidence in this case shows that the
bridge in controversy will, if erected, constitute a material
obstruction and impediment to the navigation of the Hudson River
for the vessels of the plaintiff mentioned in the pleadings and
proofs.
Third. Whether or not the defendant is entitled to a decree
dismissing the bill on the ground that the complainant has an
Page 66 U. S. 584
adequate remedy at law for all injury he may sustain by reason
of the erection of the said bridge, should the same be erected as
proposed.
On which several questions the opinions of the judges were
opposed.
Whereupon, on motion of the defendants, by their counsel, that
the points on which the disagreements hath happened may, during the
said term, be stated under the direction of the judges and
certified under the seal of the court to the Supreme Court of the
United States, to be finally decided:
It is ordered that the said points of disagreement, together
with the pleadings and proofs herein, be, and they hereby are,
certified, according to the request of the defendants, as
aforesaid, and of the act of Congress in that case made and
provided.
This Court, after hearing the arguments of counsel for the
respective parties, and upon consideration of the first question,
are equally divided in opinion, and consequently no instructions
can be given to the court below concerning it. And, being thus
divided on the first question, which involved the jurisdiction of
the court below over the subject matter of the suits, no opinion
can be properly expressed upon the two remaining questions. These
two questions can become material only, or be inquired into, after
jurisdiction has been entertained in the cases and the Court bound
to proceed to a final disposition of them.
We may add also that the second question is one which, according
to a decision of this Court, is not properly certified here, the
question being one of fact.
49 U. S. 8 How.
258.
This being the condition and posture of the cases, it becomes
proper and necessary to remit them to the court below, for the
purpose of enabling that court to take action upon them and such
further proceedings as the rules of the court or principles of law
may require. The rights and interests of both parties call for such
a disposition of the cases here, for, as the judges of the court
below were divided in opinion upon the question of jurisdiction,
when the cases go down, as they must, for final disposition in that
court, the bills in the two cases, according
Page 66 U. S. 585
to the established rule of proceeding, under the circumstances
stated, are to be dismissed and a decree to that effect entered so
that the parties aggrieved may, if they think proper, bring up the
questions on appeal for review from the final decree.