Cincinnati Company v. McKeen/Opinion of the Court

by Melville Fuller

United States Supreme Court

149 U.S. 259

Cincinnati Company  v.  McKeen

This is a certificate from the United States circuit court of appeals for the seventh circuit. It appears therefrom that the case came on to be heard before the circuit judge and two district judges holding that court, on January 13, 1892, the circuit justice not being in attendance, or able at that time to attend; that one of said judges was unwilling, and another disqualified, to sit upon the final hearing and determination of the appeal; and that, it appearing to the court that the appeal involved questions of law of great importance which should be certified to the supreme court of the United States, it was thereupon ordered that certain questions and propositions of law be, and the same were thereby, certified to this court as questions or propositions concerning which the circuit court of appeals desired the instruction of this court for their proper decision. After stating the questions, the certificate concluded with a direction to the clerk to transmit to the clerk of the supreme court of the United States, in connection with the certificate, 20 copies of the printed record in the cause, and it is apparent that reference to that record is necessary in order to the correct determination of the questions. On December 12, 1892, a motion was made in this court that the transcript of the record sent up by the circuit court of appeals be received, and that the whole record and the cause be retained in this court for its consideration. On December 19th this motion was denied, and it was further ordered that 'counsel be allowed to submit briefs on the questions whether the certificate in this cause is valid, and, if so, whether it is sufficient, under the act creating the circuit court of appeals, to be proceeded upon by this court.' ^[1] No suggestions have been made or briefs submitted by counsel.

We are of opinion that a certificate of questions or propositions of law concerning which a circuit court of appeals desires the instruction of this court for their proper decision is irregular when a quorum of its members does not sit in the case, (U.S. v. Emholt, 105 U.S. 414;) and that this certificate does not comply with rule 37 of this court, inasmuch as it does not contain a proper statement of the facts on which the questions or propositions of law arise. While we have the power to require the whole record and cause to be sent up to us for consideration and decision, the sixth section of the judiciary act of March 3, 1891, does not contemplate that questions or propositions of law shall be propounded, and the entire record thereupon transmitted for us to answer such questions or propositions in view thereof. It is for us, when questions or propositions are certified, accompanied by a proper statement of the facts on which they arise, to determine whether we will answer them as propounded, or direct the whole record to be placed before us in order to decide the matter in controversy in the same manner as if the case had been brought up by writ of error or appeal.

We must decline, therefore, to answer the questions contained in this certificate, and order the case to be dismissed.

Notes

1. There was no opinion filed with this order.