MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
Under section five of the Judiciary Act of March 3, 1891, a writ of error can be taken directly to this court from the Circuit Courts only in the six classes of cases therein mentioned, and the contention is that the writ may be sustained in this case as falling within the first class, described in that section as follows: "In any case in which the jurisdiction of the court is in issue; in such case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision." According to that provision the question involving the jurisdiction of the Circuit Court must have been in issue and decided against the party seeking to bring it before this court for determination, and must be certified for decision. And as no such question was certified by the Circuit Court in this case, we are confronted on the threshold with the inquiry whether we can take jurisdiction of the writ, an inquiry controlled by the rule that an affirmative description of the appellate jurisdiction of this court in a suit implies a negative on the exercise of such appellate power as is not comprehended within it.
And the section under consideration declares in express terms that when the case is brought directly to this court the question of jurisdiction so in issue shall be certified for decision.
The rules in relation to certificates of division of opinion in civil causes under sections 650, 652, 693 of the Revised Statutes were well settled. Each question had to be a distinct point or proposition of law, clearly stated, so that it could be definitely answered without regard to the other issues of law in the case; to be a question of law only, and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment on the weight or effect of testimony or facts adduced in the case; and could not embrace
By section six of the act of March 3, 1891, c. 517, 26 Stat. 826, 828, it is provided "that in every such subject within its appellate jurisdiction, the Circuit Court of Appeals may at any time certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision."
In Columbus Watch Co. v. Robbins, 148 U.S. 266, it was held that in order to give this court jurisdiction over questions or propositions of law sent up by a Circuit Court of Appeals for decision, it was necessary that the questions or propositions should be clearly and distinctly certified to, and should show that the instruction of this court was desired in a particular case as to their proper decision. And reference was there made to the rules laid down in reference to certificates on division of opinion above adverted to. So in Cincinnati, Hamilton &c. Railroad Co. v. McKeen, 149 U.S. 259, it was held that the act of March 3, 1891, does not contemplate the certification of questions of law to be answered in view of the entire record in the cause, although this court may, if it sees fit, order the entire record to be sent up, and thereupon decide the case as if it had been brought up by writ of error or appeal. We think the intention of Congress as to the certification mentioned in both sections is to be arrived at in the light of the rules theretofore prevailing as to certifying from the court below, and since, in the instance of an appeal upon the
It appears that the petition for writ of error was filed in this case July 6, 1891, together with a bond for the prosecution thereof, and an assignment of errors, and this petition and the assignment raised the question that the matter in dispute in the cause did not exceed, exclusive of interest and costs, the sum of two thousand dollars; but the trial judge made no endorsement thereon. The writ specifies no particular ground of error, and it is upon the writ that the allowance was entered November 16, 1891, the judge certifying that on that day it was presented to him "for allowance and signature." But in any view the absence of the formal certificate cannot be helped out by resort to these papers. The inquiry is not whether we can ascertain the question sought to be presented, but whether we can exercise jurisdiction under the statute, which we cannot if the certificate is an absolute prerequisite, as we hold it to be. And upon that ground we dismiss the writ without discussing whether the question of jurisdiction indicated could properly be held to have been in issue, or whether, if so, the case would fall within the fifth section.
Writ of error dismissed.