[248 U.S. 178, 179] Messrs. A. C. Dustin, Horace Andrews, and W. P. Belden, all of Cleveland, Ohio, for Cleveland-Cliffs Iron Co.
Messrs. S. W. Shaull, of Tropico, Cal., and C. C. Daniels, of New York City, for Arctic Iron Co.
Mr. Chief Justice WHITE delivered the opinion of the Court.
The certificate upon which this case is before us contains what are denominated findings of fact grouped under eighteen paragraphs covering eight pages of the record. Upon these findings we are asked to instruct as to six propositions of law, really amounting to twelve since each is twofold, that is, stated in the alternative. But we are of opinion that we may not instruct as to these propositions for the following reasons:
In the first place, because we think it is clear that the statements which are declared in the certificate to be findings of fact are in no true sense entitled to that characterization, since the statements amount but to a narrative of facts mixed with questions of law so interblended, the one with the other, as to cause it to be impossible to conclude as to either the law or the facts without a separation of the two, a duty which we may not be called upon to perform in giving instructions upon questions of law propounded under the statute controlling that subject.
In the second place, because even if the admixture of law and fact which inheres in the recitals in the certificate be overlooked, the recitals nevertheless, in and of themselves, fail to distinguish between facts which are merely evidential and those which are ultimate and which for that reason would be susceptible of furnishing support [248 U.S. 178, 180] for the legal propositions as to which instructions are asked.
It is true, indeed, that the statute gives us the discretion, when a case is certified, to direct the sending up of the whole record, but obviously the exercise of that discretionary power is not called for by a case where the certificate is of such a character as not to be embraced by the statute.
It must be, therefore, that this case affords no ground for directing the sending up of the whole record since here the certificate is inadequate to sustain the right to answer the questions stated. To hold to the contrary would be to cause a mistaken exercise of the right to certify specific questions to become the instrument by which the division of powers made by the statute would be disregarded.
The views which we have stated are in accord with the settled rules concerning the power to certify which have prevailed from the beginning. See Dillon v. Strathearn Steamship Co., 248 U.S. 182 , 39 Sup. Ct. 83, this day decided, and the authorities therein cited. It follows that the certificate must be and is dismissed.
Mr. Justice CLARKE, dissenting.
I greatly regret that I cannot concur in the conclusion of the court just announced.
That the certificate of the Circuit Court of Appeals is longer and more detailed than is usual is sufficiently explained by the unusual character of the facts in the case and of the questions of law involved. The certificate concludes with this statement:
Question No. 5 is in the alternative, viz.:
While these two questions run into each other and could, perhaps, have been written as one, nevertheless, in my judgment, each presents a question of law, arising upon recited facts, and each is stated with sufficient precision to bring it within the terms of section 239 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1916, 1216]) and Rule 37 of this court (32 Sup. Ct. xiv), and I therefore think that these two questions, at least, should have been answered, or that this court should have required that the whole record of the case be sent up for its consideration.