[215 U.S. 216, 217] This was a bill in equity filed by the Baltimore & Ohio Railroad Company in the circuit court of the United States for the district of Maryland against the Interstate Commerce Commission, July 20, 1908, which prayed for a preliminary injunction and a final decree enjoining, annulling, and suspending a certain order of the Commission served June 24, 1908, in a proceeding before the Commission, entitled, 'Rail & River Coal Company v. Baltimore & Ohio Railroad Company.'
On July 27, 1908, the attorney general, in compliance with 5 of the act to regulate commerce, as amended by the act of June 29, 1906 [34 Stat. at L. 592, chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 905], filed in the court the certificate of general public importance under the expedition act of February 11, 1903 [32 Stat. at L. 823, chap. 544, U. S. Comp. Stat. Supp. 1907, p. 951]. In accordance with the provisions of the act of February 11, 1903, the two circuit judges, by order filed August 26, 1908, designated the Honorable Thomas J. Morris, district judge for the district of Maryland, to sit with them on the hearing and disposition of the case.
The application for the preliminary injunction was set for hearing September 22, 1908. Defendant's answer was filed September 19, 1908. By order entered September 23, 1908, the application for the preliminary injunction was denied.
Replication was filed and testimony taken, and, there being no substantial dispute as to the facts, Mr. Arthur Hale, complainant's general superintendent of transportation, and also chairman of the car efficiency committee of the American Railway Association, was able to testify as to all matters [215 U.S. 216, 218] that counsel deemed necessary to bring to the court's attention, and was the only witness.
December 14, 1908, the cause came on for final hearing, and was argued before the two circuit judges and the district judge designated by them. No final decree or judgment was entered, but the presiding judge entered the following order:
The cause was docketed in this court and the transcript of record filed January 25, 1909, as 'on a certificate from the circuit court of the United States for the district of Maryland.'
The act of Congress of February 11, 1903 (32 Stat. at L. 823, chap. 544, U. S. Comp. Stat. Supp. 1907, p. 951), contains two sections, as follows:
(1) 'That in any suit in equity pending or hereafter brought in any circuit court of the United States under the act entitled, 'An Act to Protect Trade and Commerce against Unlawful Restraints and Monopolies,' approved July second, eighteen hundred and ninety [26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200], 'An Act to Regulate Commerce,' approved February fourth, eighteen hundred and eighty-seven [24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3154], or any other acts having a like purpose that hereafter may be enacted, wherein the United States is complainant, the Attorney General may file with the clerk of such court a certificate that, in his opinion, the case is of general public importance, a copy of which shall be immediately furnished by such clerk to each of the circuit judges of the circuit in which the case is pending. Thereupon such case shall be given precedence over others, and in every way expedited, [215 U.S. 216, 219] and be assigned for hearing at the earliest practicable day, before not less than three of the circut judges of said circuit, if there be three or more; and, if there be not more than two circuit judges, then before them and such district judge as they may select. In the event the judges sitting in such case shall be divided in opinion, the case shall be certified to the Supreme Court for review in like manner as if taken there by appeal as hereinafter provided.
Section 5 of the Hepburn act, so called, of June 29, 1906 (34 Stat. at L. 584, 592, chap. 3591, U. S. Comp. Stat. Supp. 1907, pp. 892, 904), provides:
... * *
Messrs. W. Irvine Cross, Hugh L. Bond, Jr., and W. Ainsworth Parker for the Baltimore & Ohio Railroad Company.
Assistant to the Attorney General Ellis and Messrs. Luther M. Walter and Orla E. Harrison for the Interstate Commerce Commission.
Statement by Mr. Chief Justice Fuller:
Mr. Chief Justice Fuller delivered the opinion of the court:
By the judiciary act of March 3, 1891 [26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488], a review by certificate is limited to the certificate or its equivalent by the circuit courts, made after final judgment, of the question, when raised, of their jurisdiction as courts of the United States, [215 U.S. 216, 221] and to the certificate by the circuit courts of appeal of questions of law in relating to which the advice of this court is sought as therein provided, which certificates are governed by the same rules as were formerly applied to certificates of division. United States v. Rider, 168 U.S. 132 , 41 L. ed. 101, 16 Sup. Ct. Rep. 983; The Habana, 175 U.S. 677, 684 , 44 S. L. ed. 320, 322, 20 Sup. Ct. Rep. 290; Chicago, B. & Q. R. Co. v. Williams, 205 U.S. 444 , 51 L. ed. 875, 27 Sup. Ct. Rep. 559. And it has been established by repeated decisions that questions certified to this court upon a division of opinion must be distinct points of law, clearly stated, so that they can be distinctly answered without regard to other issues of law or of fact; and not questions of fact or of mixed law and fact, involving inferences of fact from particular facts stated in the certificates; nor yet the whole case, even if divided into several points. Jewell v. Knight, 123 U.S. 426, 433 , 31 S. L. ed. 190, 192, 8 Sup. Ct. Rep. 193.
And finally, it has been settled that the whole case, even when its decision turns upon matter of law only, cannot be sent here by certificate of division.
In White v Turk, 12 Pet. 238, 9 L. ed. 1069, it was said: 'The certificate of the judges, in this case, leaves no doubt that the whole cause was submitted to the circuit court by the motion to set aside the judgment on the bond. And, had the court agreed in opinion, and rendered a judgment upon the points submitted, it would have been conclusive of the whole matter in controversy between the parties. This certificate, therefore, brings the whole cause before this court; and, if we were to decide the questions presented, it would, in effect, be the exercise of original, rather than appellate, jurisdiction.' This practice was declared irregular by Chief Justice Taney in Webster v. Cooper, 10 How. 54, 13 L. ed. 325, and the chief justice added that it 'would, if sanctioned, convert this court into one of original jurisdiction in questions of law, instead of being, as the Constitution intended it to be, an appellate court to revise the decisions of inferior tribunals.' So Mr. Justice Miller, in United States v. Perrin, 131 U.S. 55, 58 , 33 S. L. ed. 88, 89, 9 Sup. Ct. Rep. 681, 682, said:
Without discussing the evolution of the use of certificates, reference to the legislation given below may be profitable. 1 [215 U.S. 216, 223] In the present case no final judgment or decree or order determinative of the merits was rendered, but the court ordered 'that this case be certified for review to the Supreme Court of the United States,' and that 'a transcript of the record and proceedings of the cause aforesaid, together with all things thereunto relating, be transmitted to the said Supreme Court of the United States; and the same is transmitted accordingly.'
The act of Congress of February 11, 1903, provided in its 1st section that, on the certificate of the Attorney General, the case should be assigned for hearing before not less than [215 U.S. 216, 224] three judges, and that, 'in the event the judges sitting in such case shall be divided in opinion, the case shall be certified to the Supreme Court for review in like manner as if taken there by appeal, as hereinafter provided.' The order of the circuit court pursues the language of this provision, and attempts to send up the whole case to be determined by this court. This invokes the exercise of original jurisdiction, and cannot be sustained.
In a note to United States v. Ferreira, 13 How. on page 52, 14 L. ed. on page 47, note, which was inserted by order of the court, the chief justice states the substance of the case of the United States v. Todd, which was decided in February, 1794, but not printed, as there was at that time no official reporter. This note thus concludes:
Such is the settled rule, and it is inadmissible to suppose that it was the intention of Congress to run counter to it.
Ordinarily in the Federal courts, in the absence of express statutory authority, no appeal can be taken or writ of error brought except from a final decree or to a final judgment. McLish v. Roff, 141 U.S. 661, 665 , 35 S. L. ed. 893, 894, 12 Sup. Ct. Rep. 118; Forgay v. Conrad, 6 How. 201, 205, 12 L. ed. 404, 406. There is no final judgment or decree in this case, nor any judicial determination from which an appeal would lie. The Alicia, 7 Wall. 571, 19 L. ed. 84, is in point. In that case it appeared that, on the 9th day of January, 1863, a decree of [215 U.S. 216, 225] condemnation had been entered in the district court against the Alicia and her cargo for violation of the blockade. From this decree an appeal was allowed and taken to the circuit court; and on the 18th of May, 1867, an order was made in that court on the application of the parties in interest- there being at this time, in the circuit court, no order, judgment, or decree in the case-for the transfer of the cause to this court under the 13th section of the act of June 30, 1864 [13 Stat. at L. 311, chap. 174], which enacted that prize causes depending in the circuit court might be so transferred. This court held that the cause was removed to the circuit court by the appeal from the decree of the district court, and that that decree was vacated by the appeal, and that the circuit court acquired full jurisdiction of the cause, and was fully authorized to proceed to final hearing and decree. And Chief Justice Chase said: 'Nor can it be doubted that, under the Constitution, this court can exercise, in prize causes, appellate jurisdiction only. An appellate jurisdiction necessarily implies some judicial determination,-some judgment, decree, or order of an inferior tribunal, from which an appeal has been taken. But in this case there had been no such order, judgment, or decree in the circuit court; and there was no subsisting decree in the district court, from which an appeal could be taken. We are obliged to conclude that, in the provision for transfer, an attempt was inadvertently made to give to this court a jurisdiction withheld by the Constitution, and, consequently, that the order of transfer was without effect. The cause is still depending in the circuit court.'
The result is that the order must be set aside and the case remanded to the circuit court, with directions to proceed in conformity with law.
[ Footnote 1 ] Section 6 of the "Act to Amend the Judicial System of the United States," April 29, 1802 (2 Stat. at L. 159, chap. 31), provided:
This act was superseded by that of June 1, 1872 (17 Stat. at L. 196, chap. 255, U. S. Comp. Stat. 1901, p. 527), which provided:
their duty to do if such be the fact, that they differed in opinion as to any question which, under the act of Congress of April twenty-ninth, eighteen hundred and two, might have been reviewed by the Supreme Court on certificate of difference of opinion, then either party may remove said final judgment, decree, or order to the Supreme Court, on writ of error or appeal, according to the nature of the case, and subject to the provisions of law applicable to other writs of error or appeals in regard to bail and supersedeas.'
That was carried forward in 1874, by 650, 652, 654, 693, and 697 of the Revised Statutes (U. S. Comp. Stat. 1901, pp. 527, 528). Section 6 of the judiciary act of March 3, 1891 (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488), provided: