CIRCUIT COURTS OF APPEALS REPORTS CONTAINING THE CASES DETERMINED IN ALL THE CIRCUITS FROM THE ORGANIZATION OF THE COURTS FULLY REPORTED WITH NUMEROUS ANNOTATIONS BY MEMBERS OF THE EDITORIAL STAFF OF THE NATIONAL REPORTER SYSTEM VOLUME 1 With the Acts of Congress Establishing the Courts, and the Rules in all the Courts, ST. PAUL WEST PUBLISHING CO. ACT ESTABLISHING THE CIRCUIT COURTS OF APPEALS. WITH ANNOTATIONS FROM DECISIONS RENDERED BY THE [PUBLIC.-No. 118.] An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes. Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that there shall be appointed by the president of the United States, by and with the advice and consent of the senate, in each circuit, an additional circuit judge, who shall have the same qualifications, and shall have the same power and jurisdiction therein, that the circuit judges of the United States, within their respective circuits, now have under existing laws, and who shall be entitled to the same compensation as the circuit judges of the United States in their respective circuits now have. SEC. 2. That there is hereby created' in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record with appellate jurisdiction, as is hereinafter limited and established. Such court shall prescribe the form and style of its seal, and the form of writs and other process and procedure, as may be conformable to the exercise of its jurisdiction as shall be conferred by law. It shall have the appointment of the marshal of the court, with the same duties and powers, under the regulations of the court, as are now provided for the marshal of the 'The act went into immediate effect, so as to allow of appeals thereunder from judgments entered after its date, even in pending cases. In re Claasen, 140 U. S. 200, 11 Sup. Ct. Rep. 735; Railroad Co. v. Bennett, (6th Circuit,) 1 C. C. A. 392, 49 Fed. Rep. 598; Railroad Co. v. Amato, (2d Circuit.) 1 C. C. A. 468, 49 Fed. Rep. 881; Railroad Co. v. Andrews, (6th Circuit,) 1 C. C. A. 636, 50 Fed. Rep. 728. In Courtney v. President, etc., (8th Circuit,) 1 C. C. A. 249, 49 Fed. Rep. 309, it was held that where, in foreclosure proceedings, a decree of sale was rendered in the circuit court before the date of the act, and, after the date of the act, a further decree was rendered on a cross bill setting up a mechanic's lien, an appeal would lie to the circuit court of appeals from the latter decree, but not from the former. But the granting by the supreme court of a writ of error in a pending criminal case does not entitle the defendant to a bill of exceptions as to matters which took place before the date of the act. In re Claasen, supra, affirming 46 Fed. Rep. 67; also, 142 U. S. 140, 12 Sup. Ct. Rep. 169. supreme court of the United States, so far as the same may be applicable. The court shall also appoint a clerk, who shall perform and exercise the same duties and powers, in regard to all matters within its jurisdiction, as are now exercised and performed by the clerk of the supreme court of the United States, so far as the same may be applicable. The salary of the marshal of the court shall be twenty-five hundred dollars a year, and the salary of the clerk of the court shall be three thousand dollars a year, to be paid in equal proportions quarterly. The costs and fees in the supreme court now provided for by law shall be costs and fees in the circuit courts of appeals; and the same shall be expended, accounted for, and paid for, and paid over to the treasury department of the United States, in the same manner as is provided in respect of the costs and fees in the supreme court. The court shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as conferred by law. SEC. 3. That the chief justice and the associate justices of the supreme court assigned to each circuit, and the circuit judges within each. circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits in the manner hereinafter provided. In case the chief justice or an associate justice of the supreme court should attend at any session of the circuit court of appeals, he shall preside, and the circuit judges in attendance upon the court, in the absence of the chief justice or associate justice of the supreme court, shall preside in the order of the seniority of their respective commissions. In case the full court at any time shall not be made up by the attendance of the chief justice or an associate justice of the supreme court and circuit judges, one or more district judges within the circuit shall be competent to sit in the court according to such order or provision among the district judges as either by general or particular assignment shall be designated by the court: provided, that no justice or judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals. A term shall be held annually by the circuit court of appeals in the several judicial circuits at the following places: In the first circuit, in the city of Boston; in the second circuit, in the city of New York; in the third circuit, in the city of Philadelphia; in the fourth circuit, in the city of Richmond; in the fifth circuit, in the city of New Orleans; in the sixth circuit, in the city of Cincinnati; in the seventh circuit, in the city of Chicago; in the eighth circuit, in the city of St. Louis; in the ninth circuit, in the city of San Francisco; and in such other places in each of the above circuits as said court may from time to time designate. The first terms of said courts shall be held on the second Monday in January, eighteen hundred and ninety-one, and thereafter at such times as may be fixed by said courts. SEC. 4. That no appeal, whether by writ of error or otherwise, shall hereafter be taken or allowed from any district court to the existing circuit courts, and no appellate jurisdiction shall hereafter be exercised or allowed by said existing circuit courts, but all appeals, by writ of error otherwise, from said district courts shall only be subject to review in the supreme court of the United States or in the circuit court of appeals hereby established, as is hereinafter provided, and the review, by appeal, by writ of error, or otherwise, from the existing circuit courts shall be had only in the supreme court of the United States or in the circuit courts of appeals hereby established, according to the provisions of this act regulating the same." SEC. 5. That appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court in the following cases: In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision.* From the final sentences and decrees in prize causes. In cases of conviction of a capital or otherwise infamous crime." In any case that involves the construction or application of the constitution of the United States. The entire appellate jurisdiction is distributed, by the provisions of this act, between the supreme court and the circuit court of appeals. MeLish v. Roff, 141 U. S. 667, 12 Sup. Ct. Rep. 120; Lau Ow Bew v. U. S., 144 Ü. S. 47, 12 Sup. Ct. Rep. 517. The supreme court has no direct appellate jurisdiction over the circuit and district courts, except in the six classes of cases here enumerated, unless the cause was pending at the date of the act, and the appeal or writ of error was allowed before July 1, 1891, as provided by the joint resolution passed on the same day with the act. Bank v. Peters, 144 U. S. 570, 12 Sup. Ct. Rep. 767. No appeal will lie on the question of jurisdiction before the entry of final judgment. McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. Rep. 120; Railroad Co. v. Roberts, 141 U. S. 690, 12 Sup. Ct. Rep. 123. A party cannot, at the same time, appeal to the supreme court on the question of jurisdiction, and to the circuit court of appeals on the merits. Id. But if one party goes to the supreme court on the question of jurisdiction, his opponent may appeal to the circuit court of appeals on the merits. Railroad Co. v. Glaspell, (8th Circuit,) 1 C. C. A. 327, 49 Fed. Rep. 482. On appeals to the supreme court in the other five classes of cases enumerated in this section, the entire case goes to that court. Horner v. U. S., 143 U. S. 570, 12 Sup. Ct. Rep. 522. When the jurisdiction of the court below is in question, the jurisdiction of the supreme court is exclusive, and no appeal will lie to the circuit court of appeals. U. S. v. Sutton, (9th Circuit,) 2 C. C. A., 47 Fed. Rep. 129. But compare McLish v. Roff, supra, where it is said hat the party against whom judgment is rendered "must. elect whether he will take his writ of error or appeal to the supreme court upon the question of jurisdiction alone, or to the circuit court of appeals on the whole case. If the latter, then the circuit court of appeals may, if it deem proper, certify the question of jurisdiction to this court." And in Bariing v. Bank, (9th Circuit,) 1 C. C. A. 510, 50 Fed. Rep. 262, the circuit court of appeals, quoting the above language, entertained an appeal in which the jurisdiction of the circuit court was in issue; and, considering it a plain case in favor of such jurisdiction, decided that issue itself, holding that it was not bound to certify the question to the supreme court. So that, as it would seem,' U. S. v. Sutton, supra, is practically overruled. This clause does not enlarge the supreme court's power of United States to sue out a writ of error in a criminal case. 310, 12 Sup Ct. Rep. 609. review so as to enable the U. S. v. Sanges, 144 U. S. A crime punishable by imprisonment in a state penitentiary is an "infamous crime," though the accused is not sentenced to hard labor. In re Claasen, 140 U. S. 200, 11 Sup. Ct. Rep. 735. Adultery is an "infamous crime," and a judgment of conviction thereof is reviewable in the supreme court alone. U. S. v. Sutton, (9th Circuit,) 2 C. C. A. · - 47 Fed. Rep. 129. This clause does not apply to the supreme court of the District of Columbia, and no writ of error lies to that court in criminal cases. In re Heath, 144 U. S. 92, 12 Sup. Ct. Rep. 615; Cross v. U. S., 145 U. S. 571, 12 Sup. Ct. Rep. 842. This clause does not enlarge the supreme court's power of review so as to enable the United States to sue out a writ of error in a criminal case. U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. Rep. 609. |