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This was a libel filed by the United States in the district [159 U.S. 687, 688] court for the Southern district of New York to recover a penalty from the steamship Bayonne, under the act of congress approved June 29, 1888, entitled 'An act prevent obstructive and injurious deposits within the harbor and adjacent waters of New York City, by dumping or otherwise, and to punish and prevent such offences.' 25 Stat. 209, c. 496. The first section of that act provides:
The act further provides for the punishment of every master, engineer, or person or persons acting in such capacity, respectively, on board of any boat or vessel, who shall knowingly engage in towing any scow, boat, or vessel loaded with prohibited matter, to an unauthorized place of deposit; requires masters of scows and boats carrying such matter to apply to the supervisor of the harbor for a permit defining the precise limits within which their contents might be discharged; and provides for a remedy in admiralty by the concluding paragraph of section 4, which reads as follows: 'Any boat or vessel used or employed in violating any provision of this act, shall be liable to the pecuniary penalties [159 U.S. 687, 689] imposed thereby, and may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof.'
The supervisor of the harbor, assuming to act under and by virtue of the statute, directed that the prohibited matter must not be deposited 'except to the south and east of a certain white spar buoy, known as the 'Mud Buoy,' which buoy is three miles south of Coney Island and located as follows: Stone Beacon light bearing west 3/4 south, distant 4 1/2 miles; West Brighton observatory bearing northwest by south 1/2 north, distant 3 1/2 miles; Sandy Hook lighthouse bearing southwest, distant 6 miles; Scotland lightship bearing south 1/2 west, distant 6 1/4 miles; Sandy Hook light bearing south southwest, distant 7 3/4 miles.'
Certain ashes were dumped from the deck of the Bayonne into tidal waters, not to the south and east of the Mud buoy, but to the southward and westward thereof, at or near the mouth of Gedney's Channel, at a point more than three miles from Sandy Hook and more than three miles from Coney Island and the shore of Long Island. These ashes were dumped by the direction of the mate for the relief of the ship in the usual course of her navigation, the vessel being at the time about 20 minutes beyond Sandy Hook, contrary to the orders of the master, which were that ashes should not be put overboard until the ship was an hour at sea after the pilot left her, and this constituted the alleged use and employment of the vessel in violation of the act of congress.
It was adjudged by the district court that, by force of the statute, and of the definition of the limits by the supervisor where the deposit of ashes must take place, the steamship became liable to a penalty of $250, for which sum, with costs, a final decree was entered in favor of the United States, December 21, 1892. On the 31st of December the claiment filed the following prayer for appeal:
This was indorsed by the district judge, 'Appeal allowed.'
On January 17, 1893, the following assignment of errors was filed as of December 31, 1892, by direction of the district judge that the same should be filed nunc pro tunc:
A motion to dismiss having been made, appellant served notice of a motion 'to remand this cause to the district court for the purpose of having annexed to the record a certificate distinctly certifying to this court the jurisdictional questions involved in this appeal, or, in the alternative, for a writ of certiorari to have such certificate annexed to the transcript of record.' Annexed to this motion was a certificate by the district judge, filed November 8, 1895, which, after stating the case, continued as follows:
This certificate was directed by the district judge, November 8, 1895, to be filed nunc pro tunc as of January 17, 1893. [159 U.S. 687, 692] The motion to dismiss and the cross motion to remand for certificate or for certiorari were submitted on briefs.
J. Parker Kirlin, for appellant.
Sol. Gen. Conrad, for appellee.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
No question as to the constitutionality of the act of congress arises on this appeal, but it is contended that the jurisdiction of the district court was in issue, and that therefore the appeal was properly taken directly to this court. But the judiciary act of March 3, 1891, provides that in cases where the jurisdiction of the court below is in issue, that question, and that alone, shall be certified to this court for decision, the inquiry being limited to the question thus certified. U. S. v. Jahn, 155 U.S. 109, 113 , 15 S. Sup. Ct. 39.
In Maynard v. Hecht, 151 U.S. 324 , 14 Sup. Ct. 353, we held that a certificate from the court below of the question of jurisdiction to be decided was an absolute prerequisite to the exercise of jurisdiction here, and indicated by reference to the settled rules in relation to certificates of division of opinion in what manner we thought the certificates should be framed.
In Colvin v. City of Jacksonville, 158 U.S. 456 , 15 Sup. Ct. 866, it was decided that such certificate must be granted during the term at which the judgment or decree is entered.
The district court of the United States for the Southern district of New York has monthly terms. Rev. St. 572. The decree here was entered December 21, and the appeal allowed December 31, 1892. On the 17th of the following January, during a new term of the court, the assignment of errors was directed to be filed nunc pro tunc as of December 31, 1892. If that assignment could be treated as a certificate, it came too late, and, as there is nothing in the record prior to the expiration of the December term to indicate any attempt or intention to file a certificate during that [159 U.S. 687, 693] term, and these was no omission to enter anything which had actually been done at that term, the case did not come within the rule that permits an amendment of the record nunc pro tunc. Hickman v. Ft. Scott, 141 U.S. 415, 418 , 12 S. Sup. Ct. 9; Bank v. Eldred, 143 U.S. 293, 299 , 12 S. Sup. Ct. 450. We do not, however, regard the assignment of errors, and the action of the court in directing it to be filed, as a compliance with the statutory provision, and equivalent to the certificate required.
The certificate of November 8, 1895, which gives a statement of the case and certifies certain specific questions as questions of jurisdiction, was also wholly unavailing at that date.
Nor do we think that the allowance of the appeal can be treated as a certificate. The prayer for appeal did, indeed, state that claimant appealed 'upon the ground that this court was without jurisdiction to make the said decree,' but it specified no question of jurisdiction, and asked 'that a transcript of the record and proceedings and papers upon which said final decree was made should be sent up,' as if the appeal were on the whole case. The entry of the district judge thereon was, 'Appeal allowed.' This was wholly insufficient to subserve any other than the ostensible purpose.
In the case of Lehigh Min. & Manuf's Co., 156 U.S. 311 , 15 Sup. Ct. 375, the defendant in an action of ejectment filed two pleas to the jurisdiction of the court, which pleas were sustained, and judgment thereupon entered as follows: 'And for reasons in writing filed herewith, as part of this order, the court doth further consider that it has no jurisdiction of this case, and that the said action of ejectment be, and the same is hereby, dismissed for want of jurisdiction, but without prejudice to the parties to this suit.' A bill of exceptions was taken, in which it was declared that the court 'held that the court did not have jurisdiction of this suit, and ordered the same to be dismissed, to which opinion and action of the court the plaintiff did then and there except.' The plaintiff then prayed for a writ of error from this court, which was allowed by an order under the hand of the judge, and entered of record, reciting the final judgment entered, 'dismissing the [159 U.S. 687, 694] said case because the said court, in its opinion, did not have jurisdiction thereof,' and that plaintiff prayed for a writ of error 'upon the said question of jurisdiction,' and averring 'that said writ of error be allowed and awarded as prayed for.' Under these circumstances it was thought that the question was sufficiently certified.
In Shields v. Coleman, 157 U.S. 168 , 15 Sup. St. 570, a receiver appointed by a state court intervened in a suit in the circuit court of the United States for the recovery of possession of railroad property from the receiver of the circuit court, and, his application having been denied, he prayed an appeal to this court from the decree and interlocutory orders by which the circuit court assumed and asserted jurisdiction over the property. The circuit court allowed the appeal by an order stating 'this appeal is granted solely upon the question of jurisdiction,' and reserving to the court the right, which it subsequently exercised, of determining what portion of the proceedings should be incorporated into the record for the purpose of presenting that question. We entertained jurisdiction in that case also. But we are of opinion that this case cannot be brought within either of those last cited.
The conclusion is that this appeal must be dismissed for want of jurisdiction, because of the lack of the proper certificate, a defect which cannot now be supplied. We have assumed that jurisdictional questions existed, within the meaning of section 5 of the act of March 3, 1891, though not properly raised, but we do not wish to be understood as intimating any opinion on that subject.
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