Under the act of April 29, 1802 (§ 6), providing
"that whenever any question shall occur before a circuit court
upon which the opinions of the judges shall be opposed, the point
upon which the disagreement shall happen shall . . . be certified .
. . to the supreme court, and shall by the said court be finally
decided"
the court will not even by consent
Page 70 U. S. 251
of parties take jurisdiction, unless the certificate of division
present in a precise form, a point of law upon a part of the case
settled and stated. Hence where the record stated certain facts,
and with this statement presented the testimony of numerous
witnesses which was directed to the establishment of others, the
whole case being, in fact, brought up with a purpose, apparently,
that this Court should decide both fact and law -- and the question
certified was whether in point of law upon the facts as stated and
proved the action could be maintained -- the court
dismissed the case as not within its jurisdiction.
The sixth section of the act of Congress of 29 April, 1802,
[
Footnote 1] provides:
"That whenever
any question shall occur before a
circuit court upon which the opinions of the judges shall be
opposed,
the point upon which the disagreement shall
happen, shall &c., be stated under the direction of the judges
and certified . . . to the supreme court . . . and shall by the
said court be finally decided."
With this act in force, Daniels brought a suit in the Circuit
Court for the Northern District of Illinois against the Rock Island
Railway Company for injuries done him by a collision on its
railroad, there being a special plea to one of the counts of the
declaration -- of which there were several, denied generally --
that the collision referred to was brought about by the
carelessness of the defendant's servant and without the knowledge
or consent of the defendant, and that at the time of the injury,
the plaintiff himself was a servant serving as a fireman on the
locomotive. The record went on:
"On the trial, it was proved that the defendant was a common
carrier of passengers; that at the time alleged, the plaintiff was
on the engine of the defendant for the purpose and
in the
manner hereinafter stated, proceeding over the road of the
defendant, when by the negligence and carelessness of the engineer
of the locomotive (the said engineer being at the time a servant of
the defendant), upon which the plaintiff was riding, a collision
took place, which resulted in great personal injury to the
plaintiff.
Page 70 U. S. 252
The circumstances connected with the plaintiff's trip and the
manner and purpose of his firing the engine, as well as some
conversation of his after the injury, are detailed by the witnesses
as follows."
Then followed the testimony of seven witnesses -- two on one
side, five on the other -- examined and cross-examined. These
witnesses testified that the plaintiff
had been, a week
previously to the accident, a fireman on the railroad, but had been
-- as some signified it might be -- "dismissed" -- though, as it
rather appeared, possibly -- "suspended" -- that is to say, owing
to the diminished business of the road at that exact season, had
been taken off the pay list; as the company did continually with
its hands on the decrease of its business at particular times in
the year, and put on a list of persons who would be preferred when,
with the increase of business, the company would again require more
aid. "Its business was unsteady." Such persons, it was testified,
were under no obligation to come back, nor was the company bound to
employ them again, but it was a custom if they were at hand to set
them to work again as soon as there was work. Daniels, it was
testified, had been inquiring two or three days previously to the
day of the accident when he should be employed again, and was told
that it might be in one, two, three, or four weeks; that it would
depend on the business of the road.
On the day of the accident, he came to the master mechanic,
within whose business it was to employ and discharge firemen, and
asked, as some witnesses testified, for "a pass" -- though others
heard nothing about "a pass" -- to go to a place called Peru to get
his clothes. The master, according to his own testimony, told him
that the company was going to send an extra engine down that night
or the next, and that he could "fire" that engine down, though
according to the testimony of another witness, the master told him
that if he would fire that engine down he would give him a pass --
"that was the understanding between them." The master himself swore
that there was no agreement
Page 70 U. S. 253
that he should fire the engine in consideration of his passage
on it. The company, it was sworn to, was not in the habit of making
that sort of agreement, and the master mechanic had no right to
make such arrangements or to give "passes." He supposed, according
to his own testimony, that a sub-officer whose duty it would be,
unless directed to the contrary, to put the man's name on the
payroll when he saw him serving on the engine would put his name on
the roll accordingly.
There was other testimony, all directed to the fact whether or
not the man was actually reinstated or whether he was hanging on
only, expecting to be, and had now, in consideration of "firing"
the engine on a particular trip, been given the privilege of a
passage on it to go and get his clothes.
The record, after mentioning certain facts that were proved,
thus went on:
"This was all the evidence bearing upon the case, and thereupon
it occurred as a question whether, in point of law, upon the facts
as stated and proved, the action could be maintained, and
whether consequently the jury should be instructed that under the
facts as proved, the plaintiff could not recover, upon which
questions the opinions of the judges were opposed. Whereupon
&c., the foregoing points upon which the disagreement has
happened is ordered by the judges to be stated and certified to the
Supreme Court of the United States &c., for its final
decision."
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This case is brought before us by a certificate that the
opinions of the judges of the circuit court below were opposed upon
the points set forth, the proceeding having
Page 70 U. S. 254
been taken under the sixth section of the Act of the 29th of
April, 1802.
To come properly before us, the case must be within the
appellate jurisdiction of this Court. In order to create such
jurisdiction in any case, two things must concur: the Constitution
must give the capacity to take it, and an act of Congress must
supply the requisite authority. [
Footnote 2]
The original jurisdiction of this Court, and its power to
receive appellate jurisdiction, are created and defined by the
Constitution, and the legislative department of the government can
enlarge neither one nor the other. But it is for Congress to
determine how far, within the limits of the capacity of this Court
to take, appellate jurisdiction shall be given, and when conferred,
it can be exercised only to the extent and in the manner prescribed
by law. In these respects it is wholly the creature of legislation.
[
Footnote 3]
The section referred to of the act of 1802 mentions several
particulars, all of which must appear in the certificate. They are
jurisdictional, and a defect as to either is fatal.
The one which has most frequently been the subject of
discussion, and which it is necessary to consider in this case, is
"the point upon which the disagreement of the judges" occurs.
It must be a question of law, and not of fact. [
Footnote 4]
It must arise in the progress of the cause, and not
incidentally, or in relation to a collateral matter, after the
rendition of the judgment or decree. Where the question certified
was as to the amount of the bond to be given upon the allowance of
a writ of error, and where it was as to the retaxation of costs
after the principal of the judgment had been collected, this Court
held that it could not take jurisdiction. [
Footnote 5]
Page 70 U. S. 255
It cannot arise upon a motion for a new trial, the decision
resting in the discretion of the court, and not being subject to
exception. [
Footnote 6]
It may arise upon a special verdict or a motion in arrest of
judgment. [
Footnote 7]
The question whether a demurrer shall be sustained is not
sufficiently definite. The precise legal point involved upon which
the judges were divided in opinion should be stated. The Court is
not bound to look beyond the certificate to ascertain the point.
[
Footnote 8]
Nothing which may be decided according to the discretion of the
court can be made the subject of examination here in this way.
[
Footnote 9]
But if, in connection with the discretion which the court below
is asked to exercise, questions are presented which involve the
right of the matter in controversy, this Court will entertain them.
[
Footnote 10]
Except under peculiar circumstances, this Court will not take
cognizance of a question certified upon a division
pro
forma. [
Footnote
11]
The determination of the questions certified does not affect the
right to bring up the whole case by a writ of error or appeal after
it is terminated in the court below. [
Footnote 12] When a certificate of division is brought
into this Court, only the points certified are before us. The cause
remains in the circuit court, and may be proceeded in by that court
according to its discretion. [
Footnote 13]
Where the question certified was whether a letter written by a
cashier without the knowledge of the directors was
Page 70 U. S. 256
binding on the bank, this Court declined to answer, because the
solution of the question depended in part upon facts not stated in
the certificate. [
Footnote
14]
The
whole case cannot be transferred to this Court.
Chief Justice Marshall says: [
Footnote 15]
"A construction which would authorize such transfer would
counteract the policy which forbids writs of error or appeal until
the judgment or decree be final. If an interlocutory judgment or
decree could be brought into this Court, the same case might again
be brought up after a final decision, and all the delays and
expense incident to a repeated revision of the same cause be
incurred. So if the whole cause, instead of an insulated point,
could be adjourned, the judgment or decree which would be finally
given by the circuit court might be brought up by writ of error or
appeal, and the whole subject be reexamined. Congress did not
intend to expose suitors to this inconvenience, and the language of
the provision does not, we think, admit of this construction. A
division on a point in the progress of a cause on which the judges
may be divided in opinion, not the whole cause, is to be certified
to this Court."
Where it appears the whole case has been divided into points --
some of which may never arise if those which precede them in the
certificate are decided in a particular way -- the case will be
dismissed for want of jurisdiction. [
Footnote 16]
The questions must be separate and distinct, and each one must
be particularly stated with reference to that part of the case upon
which it arose. They must not be "such as involve or imply
conclusions or judgment by the judges upon the weight or effect of
the testimony or facts adduced in the cause." [
Footnote 17]
The question must not be general nor abstract, nor a mixed one
of law and fact. If it be either, this Court cannot take
jurisdiction. [
Footnote
18]
Page 70 U. S. 257
In the case before us, the questions certified are
"whether, in point of law, upon the facts as stated and proved,
the action could be maintained, and whether consequently the jury
should be instructed that under the facts as proved, the plaintiff
could not recover."
Upon looking into the record, we find a body of facts stated as
having been proved, and the testimony of numerous witnesses set
forth at length, as respectively given. The entire case is brought
before us as if we were called upon to discharge the twofold
functions of a court and jury. At the threshold arises an important
question of fact, not without difficulty. It is whether the
plaintiff is to be regarded as a passenger or a servant of the
defendant, at the time he received, upon the locomotive, the injury
for which he sues. Upon the determination of this question depend
the legal principles to be applied. They must be very different, as
the solution may be one way or the other.
The Constitution wisely places the trial of such questions
within the province of a jury, and it cannot be taken from them
without the consent of both parties. Here such consent is given,
but it is ineffectual to clothe us with a power not conferred by
law. In the light of the authorities to which we have referred, it
is sufficient to add that the questions certified are not such that
we can consider them.
According to the settled practice, the case will therefore be
dismissed for want of jurisdiction and remanded to the circuit
court with an order to proceed in it according to law.
Dismissed and order accordingly.
[See infra, p. <|70 U.S. 294|>294,
Havemeyer
v. Iowa County, 2 -- REP.]
[
Footnote 1]
2 Stat. at Large 159.
[
Footnote 2]
Marbury v.
Madison, 1 Cranch 137;
Sheldon v.
Sill, 8 How. 448.
[
Footnote 3]
Durousseau v. United
States, 6 Cranch 314;
United
States v. Moore, 3 Cranch 159;
Barry
v. Mercein, 5 How. 119.
[
Footnote 4]
Dennistoun v.
Stewart, 18 How. 565.
[
Footnote 5]
Devereaux v.
Marr, 12 Wheat. 213;
Bank of the
United States v. Green, 6 Pet. 26.
[
Footnote 6]
United States v.
Daniel, 6 Wheat. 542, 545 [argument of counsel --
omitted].
[
Footnote 7]
Somerville Executors v.
Hamilton, 4 Wheat. 230;
United
States v. Kelly, 11 Wheat. 417.
[
Footnote 8]
United States v.
Briggs, 5 How. 208.
[
Footnote 9]
Davis v.
Braden, 10 Pet. 288.
[
Footnote 10]
United States v. City of
Chicago, 7 How. 185.
[
Footnote 11]
Webster v.
Howard, 1 How. 54;
United
States v. Stone, 14 Pet. 524.
[
Footnote 12]
Ogle v. Lee, 2
Cranch 33;
United States v.
Bailey, 9 Pet. 273.
[
Footnote 13]
Kennedy v. Bank of the State
of Georgia 8 How. 586,
49 U. S.
610.
[
Footnote 14]
United States v. City Bank of
Columbus, 19 How. 384.
[
Footnote 15]
United States v.
Bailey, 9 Pet. 278.
[
Footnote 16]
Nesmith v.
Sheldon, 6 Pet. 41.
[
Footnote 17]
Dennistoun v.
Stewart, 18 How. 565.
[
Footnote 18]
Ogilvie v. Knox Insurance
Company, 18 How. 577.
