CINCINNATI, HAMILTON AND DAYTON RAILROAD COMPANY
v.
THIEBAUD; SAME V. SAME

U.S. | 1900-05-14
Nos. 259; No. 271
Mr. Justice Harlan and Mr. Justice White were not present at the argument and. took no part in the decision.
177 U.S. 615 Supreme Court of the United States (1900) Positive Treatment
Also reported at: 44 L. Ed. 911 · 20 S. Ct. 822 · SCDB 1899-212 · 1900 U.S. LEXIS 1832
Cited by 9 cases

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Synopsis

The Cincinnati, Hamilton and Dayton Railroad Company challenged the jurisdiction of the Supreme Court to review cases where constitutional questions were raised for the first time in assignments of error before the Circuit Court of Appeals rather than being distinctly presented and decided in the original Circuit Court. The Supreme Court held that it lacks jurisdiction under the Judiciary Act of 1891 when a constitutional question does not appear in the record as having been raised or considered in the lower court but only surfaces in the appellate assignment of errors, and further held that multiple simultaneous writs of error on the merits to different appellate courts in the same case are not permitted under the 1891 Act.

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Opinion of the Court
Mr. Chief Justioe Fuller

Mr. Chief Justioe Fuller delivered the opinion of the court.

When our jurisdiction is invoked under section 5 of the judiciary act of March 3, 1891, c. 517, on the ground that the case falls within the fourth, fifth or sixth of the classes of cases therein enumerated, it must appear that a title, right, privilege or immunity was claimed under the Constitution, and a definite issue in respect to the possession of the .right must be distinctly deducible from the record ; or that the constitutionality of the particular law or the validity or construction of the particular treaty was necessarily and directly drawn in question; or that the constitution or law of a State was distinctly claimed to be in contravention of the Constitution of the United States; and it is not sufficient that the point is raised in the assignment of errors. Ansbro v. United States, 159 U. S. 695; Cornell v. Green, 163 U. S. 75; Muse v. Arlington Hotel Company, 168 U. S. 430; Miller v. Cornwall Railroad, 168 U. S. 131.

The certificate shows that no question as to the constitutionality of the statute of Indiana, relied on by the plaintiff below, was raised or considered or decided in the Circuit Court, but that the objection made its appearance for the first time in the assignment of errors in the Circuit Court of Appeals.

In Carter v. Roberts, ante, p. 496, it was held that when cases arise which are controlled by the construction or application of the Constitution of the United States, a direct appeal lies to this court, and if such cases are carried to the Circuit Courts of Appeals, those courts may decline to take jurisdiction; or, where such construction or application is involved with other questions, may certify the constitutional question and after-wards proceed to judgment; or may decide the whole case in the first instance. But when the Circuit Court of Appeals has acted on the whole case, its judgment stands unless revised by certiorari to or appeal from that court in accordance with the act of March 3, 1891. Robinson v. Caldwell, 165 U. S. 359; Holt v. Indiana Manufacturing Company, 176 U. S. 68; United States v. John, 155 U. S. 109; New Orleans v. Benjamin, 153 U. S. 411; Benjamin v. New Orleans, 169 U. S. 161.

The third question propounded in the certificate, must be answered in the negative, and we do not deem it necessary to answer the others.

The writ of error in No. 271 was brought while the case was pending in the Circuit Court of Appeals on writ of error from that' court. The whole case was open on each writ for review on the merits.

In Columbus Construction Company v. Crane Company, 174 U. S. 600, it was laid down that the act of March 3, 1891, does not contemplate several separate appeals or writs of error, on the merits, in the same case and at the same time to or from two appellate courts; and as the record disclosed in that case that two writs of error to the judgment of the Circuit Court were pending, one in the Circuit Court of Appeals and the other and subsequent writ' in this court, the latter was dismissed. The writ of error in No. 271 falls within this rule.

The third question propounded in No. 259 is answered in the negative.

The writ of error in No. 271 is dismissed.

Mr. Justice Harlan and Mr. Justice White were not present at the argument and. took no part in the decision.

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Citator

Cited By

  • United States v. Shipp, 203 U.S. 563 (U.S. 1906)
  • Sun Printing & Publ'g Ass'n v. Edwards, 194 U.S. 377 (U.S. 1904)
    …be taken direct to the [*380] Supreme Court, and the grant of appellate jurisdiction- to the Circuit Courts of Appeal does not include such cases. “ In accordance therefore, with the practice indicated in Cincinnati, Hamilton & D. Co. v. Thiebaud, 177 U. S. 615, and Am. Sugar Co. v. New Orleans, 181 U. S. 277, and followed by this court in United States v. Lee Yen Tai, 113 Fed. Rep. 465, this court elects to reserve judgment upon the other questions and to certify the question of jurisdiction to the Suprem…
  • Paraiso v. United States, 207 U.S. 368 (U.S. 1907)
    …tion was raised for the consideration of the court below. Carey v. Houston & Texas Central Ry. Co., 150 U. S. 170, 181; Ansbro v. United States, 159 U. S. 695; Cornell v. Green, 163 U. S. 75, 78; Cincinnati, Hamilton & Dayton R. R. Co. v. Thiebaud, 177 U. S. 615, 619, 620; Arkansas v. Schlierholz, 179 U. S. 598. The most that could be gathered from this record is that the plaintiff in error contended that the complaint was bad by the rules of criminal pleading.. See Cornell v. Green, 163 U. S. 75, 79. Ther…

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